Indirect Infringement Prof Merges 3 2 09 Agenda

Indirect Infringement Prof Merges 3. 2. 09

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. You. Tube (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