cyckV4

CHAPTER FOURTEEN
Secondary Liability for Copyright
Infringement & Safe Harbors in
the Digital Age
Introduction
Generally, in the common law, “secondary liability” is imposed on someone who
does not commit the legal wrong directly, but is found responsible for encouraging,
facilitating or profiting from it. As you will see, the Copyright Act has no provisions
imposing secondary liability. (Compare to e.g. § 271 of the Patent Act.) As a result, the
secondary liability provisions of copyright law are entirely judge-developed, without
even an open-ended statutory basis like that given to fair use jurisprudence under § 107.
Until recently, there were two principal forms of secondary liability: contributory
infringement and vicarious liability. (It should be noted here that the Sony v. Universal
case does not clearly delineate whether and when it is talking about contributory
infringement, vicarious liability or both.)
• Contributory infringement may be found if someone, with knowledge of the
infringing activity, induces, causes or materially contributes to the infringing
conduct of another.
• Vicarious liability—an outgrowth of respondeat superior—may be imposed on
someone who has the right and ability to supervise the infringing activity and
also has a direct financial interest in the activity.
In both cases, there needs to be underlying direct infringement. In other words, someone
needs directly to violate the exclusive rights provided by § 106, before contributory or
vicarious liability can be imposed on any third party.
Sony Corp. of America v. Universal City Studios, Inc.
464 U.S. 417 (1984)
Reread sections I, II and III of the Sony opinion from Chapter 13, page 425.
PROBLEM 14-1
THE NAPSTER CASE.
This problem is designed to be used as either a free-standing hypothetical or as
part of a video argument exercise. In the latter incarnation, a video we have edited,
showing the Napster oral argument in the Ninth Circuit, is played in class. The video
is available here http://youtu.be/5ftJ1pFLGQk. Students are placed in role as the
lawyers in the case. The video is repeatedly paused throughout its length and the class
as a whole is required to brainstorm about how to open their arguments, respond to
particular judges’ questions and so on. Then the video is allowed to run and the class
can compare its answers to those of the lawyers and the court—for good or ill.