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