Copyright Infringement — Direct, Vicarious and Contributory

The United States Copyright Office defines Direct Copyright Infringement as the violation of a copyright holder’s exclusive rights, which include the impermissible reproduction, distribution, performance, public display, or creation of a derivative work of copyrighted work. Title 17 of the United States Code, §§ 501–513 govern copyright infringement and related legal remedies. In addition, copyright infringement may be vicarious and contributory.

Vicarious Copyright Infringement is based on respondeat superior, a common law principle that holds employers legal responsible for the acts of an employee, if such acts are within the scope and nature of the employment. In order to establish vicarious liability, there must be an instance of direct infringement. While the employer does not have to have direct knowledge of the infringement, the employer must have a financial interest in the infringement and the ability to control the infringement. In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, the court found Grokster liable for vicarious copyright infringement for distributing peer-to-peer software that allowed users to share electronic files. The court explained that by distributing a device that promoted or allowed infringement, a party is liable for the secondary infringement, regardless of whether the device has lawful uses.

Contributory Copyright Infringement holds a party liable for infringement where the party induced or substantially contributed to copyright infringement by another party. Here, the contributing party must have reasonably known, or had reason to know, of the infringement. In Sony Corporation of America v. Universal City Studios, Inc., the United States Supreme Court held that Sony was not liable for contributory copyright infringement for its sale of home video tape recorders. The court explained that the average member of the public used the recorders to record television programs to watch at a later time, which increased viewership to include people who would not otherwise have been able to watch the program due to scheduling conflicts. Where the objecting parties were unable to demonstrate depreciation of commercial value of their copyrights, there was no basis for a copyright infringement claim.

In order to establish a claim for copyright infringement, the copyright holder must show that (1) a valid copyright exists, (2) the infringing party had access to the copyrighted work, and (3) the allegedly unlawful use does not fall within the copyright exceptions of fair use or instruction.

The courts provide a variety of legal remedies for copyright infringement, ranging from monetary damages to injunctive relief. If a court finds a party liable of copyright infringement, the court may require the party to pay damages, which may include the legal fees and costs associated with the underlying suit. Alternatively, injunctive relief will require the infringing party to cease all future unlawful use of the copyrighted work. The court may also confiscate any infringing works, to the extent that a physical product exists. The infringing party may also serve jail time if the infringement is criminal in nature.