Definition[]
Contributory copyright infringement may be found when
| “ | one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.[1] | ” |
Put differently, liability exists if the defendant engages in personal conduct that encourages or assists the infringement.[2] Although there is no formal provision for contributory infringement in U.S. copyright law, courts have borrowed the concept from patent law and applied it to copyright cases.
Overview[]
The standard for the knowledge requirement is objective, and is satisfied where the defendant knows or has reason to know of the infringing activity. [3]
Contributory infringement is based on a connection to the infringing activity (not necessarily to the direct infringer). A contributory infringer may be liable based on the provision of services or equipment related to the direct infringement. Courts have found contributory infringement liability, for instance, when a defendant chose the infringing material to be used in the direct infringer's work.[4]
Infringement liability may also be based on the provision of equipment or other instrumentalities or goods used in or related to the infringement.[5] However, the Supreme Court in Sony Corp. v. Universal City Studios, Inc.,[6] a 5-4 decision, held that the manufacturer of videocassette recorders was not a contributory infringer for providing the equipment used in the unauthorized reproduction of copyrighted works. Borrowing a patent law principle, the Court reasoned that manufacturers of staple articles of commerce that are capable of substantial noninfringing uses should not be held liable as contributory infringers.[7] The Court held:
| “ | [T]he sale of copying equipment, like the sale of other articles of commerce, 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. [8] | ” |
The Court determined that the key question was whether the videocassette recorder was "capable of commercially significant noninfringing uses."[9]
The Court also held that in an action for contributory infringement against a manufacturer of copying devices, "the copyright holder may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright holders with an interest in the outcome."[10] The cases against producers or providers of the instrumentalities of infringement following Sony had mixed results.[11]
In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., [12], the Supreme Court held that an entity that distributes software that permits computer users to share copyrighted works through peer-to-peer networks "with the objective of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement," may also be held contributorily liable for the direct infringement of third parties.
References[]
- ↑ A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001) (full-text).
- ↑ Id.
- ↑ Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (full-text) (holding management firm's authorization of clients' performances of copyrighted compositions to be contributory infringement).
- ↑ See Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 366 (9th Cir. 1947) (full-text) (rejecting defendant's argument that as an employee, he was not responsible for his employer's decision to use infringing material, in light of defendant's personal selection and appropriation of the protected material).
- ↑ See, e.g., Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 845-47 (11th Cir. 1990) (full-text).
- ↑ 464 U.S. 417 (1984) (full-text).
- ↑ Id. at 440.
- ↑ Id. at 442. The Court cited two principles of patent law, but used only one as the appropriate analogy for copyright law: The Copyright Act does not expressly render anyone liable for infringement committed by another. In contrast, the Patent Act expressly brands anyone who "actively induces infringement of a patent" as an infringer, 35 U.S.C. §271(b), and further imposes liability on certain individuals labeled "contributory" infringers, §271(c). Id. at 434-35. Section 271(b) of the Patent Act provides, "Whoever actively induces infringement of a patent shall be liable as an infringer." 35 U.S.C. §271(b). Section 271(c) provides, "Whoever sells a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. 35 U.S.C. §271(c).
- ↑ Sony, at 442. "In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether on the basis of the facts as found by the District Court a significant number of them would be noninfringing." Id. The Court declined to "give precise content" to the issue of how much use is needed to rise to the level of "commercially significant."See id. The four dissenting Justices did not agree that the patent "staple article of commerce" doctrine of contributory infringement was applicable to copyright law. See Sony, at 490-91 n.41 (Blackmun, J., dissenting) ("[t]he doctrine of contributory patent infringement has been the subject of attention by the courts and by Congress . . . and has been codified since 1952, . . . but was never mentioned during the copyright law revision process as having any relevance to contributory copyright infringement"); see also id. at 491 (disagreeing that "this technical judge-made doctrine of patent law, based in part on considerations irrelevant to the field of copyright . . . should be imported wholesale into copyright law. Despite their common constitutional source, . . . patent and copyright protections have not developed in a parallel fashion, and this Court in copyright cases in the past has borrowed patent concepts only sparingly.") Recognizing the "concerns underlying the 'staple article of commerce' doctrine," the dissent concluded that "if a significant portion of the product's use is noninfringing, the manufacturers and sellers cannot be held contributorily liable for the product's infringing uses." See id. at 491 (Blackmun, J., dissenting).
- ↑ Id. at 446.
- ↑ See, e.g., Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988) (full-text) (seller of computer programs that defeat anti-copying protection is not liable as contributory infringer because programs can be used to enable user to make legal archival copies of copyrighted computer programs under Section 117, which the court found to be a substantial noninfringing use). But see Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp. 923, 41 U.S.P.Q.2d (BNA) 1705 (N.D. Cal. 1996) (full-text) (BBS operator who provided system on which videogames could be uploaded and downloaded found liable for contributory infringement); RCA Records v. All-Fast Sys., Inc., 594 F. Supp. 335 (S.D.N.Y. 1984) (full-text) (operator is liable for contributory infringement based on its provision of sound recordinga facilities where public could make unauthorized phonorecords).
- ↑ 545 U.S. 913, 936-37 (2005) (full-text).