Indirect Infringement

Prof Merges

3.2.09

Agenda

• Indirect Liability

• Remedies (briefly)

Basic Principles

• Tort foundations: master-servant rule, vicarious liability, etc.

• Common law flavor here

Back to Sony

• Already covered direct infringement (fair use)

• Now: contributory infringement

Balance of power in IP Policy

• P. 573: Supreme Court traditionally reluctant to expand copyright protection to deal with new technologies

• This is a job for Congress

Procedural issues

• Not a direct infringement case

• Not a class action brought by or on behalf of all copyright owners

• Limits of adjudication? Who will resolve these issues? (Veto players in Congress)

Sony’s participation in infringement

“[T]hey have sold equipment with constructive knowledge of the fact that their customers may use that equipment to make unauthorized copies of copyrighted material.”

-- P. 575

P 575, n. 1

• A finding of contributory infringement in this case would amount to granting the right to control sale of VCRs to copyright holders

• Can’t extend copyright that far

“The sale of copying equipment … does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.”

- p. 576

Infringement Machines or Digital Distribution with Incidental

copying?

• Viacom v. YouTube (Google)

Copyright Remedies

• Civil, criminal

• Injunction, forfeiture, damages

– Statutory damages: Up to $30,000/infringed work; $150,000 per intentionally infringed work

Copyright damages

• Plaintiff’s loss OR Defendant’s gain (compare to patent)

• Defendant’s gain (disgorgement): Copyright owner need only establish defendant’s gross revenues; burden on defendant to prove net profit was less

Sheldon v. MGM

• Play: Dishonored Lady

• Movie: Letty Lynton

Madeleine Smith & Scottish murder case

Chief Justice Hughes

Relative contributions

• Infringing material

• Original initiative of the infringer

• P. 627