Legal Implications of User Generated Content: YouTube, MySpace ...

A. Direct InfringementTo prevail under a theory of direct copyright infringement, a plaintiff must show that itowns the copyright in the work and that the defendant violated one or more of theplaintiff’s exclusive rights under the Copyright Act, 1 namely:1. reproduction of the work; 22. preparation of derivative works based on the work; 33. distribution of copies of the work; 44. public performance of literary, musical, dramatic, and choreographic works,pantomimes and motion pictures and other audio visual works; 55. public display of literary, musical, dramatic, and choreographic works,pantomimes and motion pictures and other audio visual works; 66. public performance of sound recordings by means of a digitial audiotransmission. 7B. Contributory InfringementMedia companies have long battled over the extent of contributory infringementliability, going back to the battle over the use of VCRs. In Sony Corp. v. Universal CityStudios, Inc., commonly known as the Betamax case, the Supreme Court held that thesale of a product with substantial non-infringing uses does not establish contributoryinfringement even where that product can also be used for infringing uses. 8However, in MGM Studios Inc. v. Grokster, Ltd., the Supreme Court refined Betamax,holding that contributory infringement may be established where a party distributes aproduct capable of both infringing and non-infringing uses with the clearly shownobjective of promoting copyright infringement. 9Thus, the elements of contributory infringement are:1. the party has knowledge of the infringing activity, and1 17 U.S.C. § 501(a).2 17 U.S.C. § 106(1).3 17 U.S.C. § 106(2).4 17 U.S.C. § 106(3).5 17 U.S.C. § 106(4).6 17 U.S.C. § 106(5).7 17 U.S.C. § 106(6).8 464 U.S. 417, 442 (1984).9 545 U.S. 913, 941 (2005).2