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What is Contributory Copyright Infringement?

Posted by Steve Vondran | Dec 03, 2016 | 0 Comments

Copyright Infringement Essentials – Understanding “Contributory Infringement” vs. “Vicarious” infringement

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Introduction

This blog discusses what you need to know about a cause of action for “contributory” copyright infringement, which in essence is a type of “aiding and abetting” of infringing software, books, movies, films, videos, jewelry, literature, poems, art, photographs or other items.

What does it take to prove a copyright infringement case?

The first important point is to understand what copyright infringement is. As one federal court in the Northern District of California noted:

“To establish a claim of copyright infringement, a plaintiff must demonstrate:

(1) ownership of a valid copyright

and

(2) “copying” of protectable expression by the defendant.

See Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987). Infringement occurs when a defendant violates one of the exclusive rights of the copyright holder. 17 U.S.C. § 501(a).

These rights include the right to reproduce the copyrighted work, the right to prepare derivative works, the right to distribute copies to the public, and the right to publicly display the work. 17 U.S.C. §§ 106(1)–(3) & (5).”

See Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1366–67 (N.D. Cal. 1995)

Watch Attorney Steve®  explain the distinction between Contributory and Vicarious Liability

Contributory vs. vicarious liability for copyright infringement

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Federal Caselaw on Contributory Infringement

In Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1199–200 (N.D. Cal. 2004), the Northern District Court in California discussed this legal concept:

“There is no statutory rule of liability for contributory infringement. However, courts recognize such liability when the defendant “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2nd Cir.1971). “Such participation must be substantial.” Religious Tech. Ctr., 907 F.Supp. at 1361.

The party alleging contributory infringement must show:

(1) direct infringement by a primary infringer

(2) knowledge of the infringement,

and

(3) material contribution to the infringement.” See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1160 (9th Cir.2004).

A defendant may be liable under a vicarious liability theory if the plaintiff demonstrates:

(1) direct infringement by a primary party,

(2) a direct financial benefit to the defendant, and the right and ability to supervise the infringers.”

This legal concept can pop up in virtually any type of copyright case including software audits where a company is accused of allowing contractors (that are performing work on behalf of the company under audit) to use infringing copies of Autodesk software or Microsoft or Adobe for example.

In another case from the ninth circuit – Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1373 (N.D. Cal. 1995) the Court discussed:

Netcom is not free from liability just because it did not directly  infringe plaintiffs' works; it may still be liable as a  contributory  infringer. Although there is no statutory rule of liability for  infringement committed by others, [t]he absence of such express language in the  copyright statute does not preclude the imposition of liability for  copyright  infringement on certain parties who have not themselves engaged in the  infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of  contributory  infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984) (footnote omitted). Liability for participation in the infringement will be established where the defendant, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971).

There must be “substantial” contribution

Where a defendant has knowledge of the primary  infringer's  infringing activities, it will be liable if it “induces, causes or materially contributes to the  infringing conduct of” the primary  infringer.  Gershwin Publishing, 443 F.2d at 1162. Such participation must be substantial.  Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D.Cal.1993),  aff'd, 35 F.3d 1435 (9th Cir.1994);  Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y.1988). See  Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1375 (N.D. Cal. 1995).

Copyright Infringement by Selling Products that Induce infringement

“To prove  copyright  infringement on an inducement theory, Columbia also had to adduce “evidence of actual  infringement by” users of Fung's services.  Grokster III, 545 U.S. at 940, 125 S.Ct. 2764. This they have done.  Both uploading and downloading  copyrighted material are  infringing acts. The former violates the  copyright holder's right to distribution, the latter the right to reproduction.  See 17 U.S.C. § 106(1) & (3);  Napster, 239 F.3d at 1014. Based on statistical sampling, Columbia's expert averred that between 90 and 96% of the content associated with the torrent files available on Fung's websites are for “confirmed or highly likely  copyright  infringing” material. Although Fung takes issue with certain aspects of the expert's methodology, he does not attempt to rebut the factual assertion that his services were widely used to  infringe  copyrights. Indeed, even giving Fung the benefit of all doubts by tripling the margins of error in the expert's reports, Columbia would still have such overwhelming evidence that any reasonable jury would have to conclude that the vastly predominant use of Fung's services has been to  infringe  copyrights.  In sum, as in  Grokster III, “[a]lthough an exact calculation of  infringing use, as a basis for a claim of damages, is subject to dispute, there is no question” that Plaintiffs have met their burden on summary judgment to warrant equitable relief.  Grokster III, 545 U.S. at 940–41, 125 S.Ct. 2764.

See Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1034 (9th Cir. 2013)

Contact a Software, IP & Copyright Law Firm

We have substantial experience handling federal copyright law matters dealing with infringed software, movies, and photos.  Contact us to discuss your case with an IP copyright attorney.  We can be reached at (877) 276-5084.  We offer flat rate legal fees for most non-litigation cases.

About the Author

Steve Vondran

Welcome to the SHORT BIO page for Attorney Steve®  (Yes, I was able to get a trademark for Attorney Steve®) Click here to go to a more COMPLETE BIO. AZ Bar Lic. #025911 CA. Bar Lic. #232337 Introduction I have done a lot of things in my 15 years of law practice and in my life in general.  ...

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