Indirect Infringement Prof Merges

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