Contributory Infringement

Contributory Infringement, also called Indirect Infringement, Indirect Liability, and Vicarious Liability, requires (1) knowledge of the infringing activity and (2) a material contribution -- actual assistance or inducement -- to the alleged infringement.

Examples of contributory infringement would be posting access codes from authorized copies of software, serial numbers, or other tools to assist in accessing such software may subject you to liability; providing a forum for uploading and downloading any copyrighted file or code cracking utility.

To succeed on a contributory infringement claim, the copyright owner must show that the party actually knew or should have known of the infringing activity

Contributory infringement is a court-created theory (i.e., not specified in the Copyright Act) designed to hold a company liable for its participation in unlawful copying. The theory is analogous to the getaway driver in a robbery; everyone knows that the person who drives the getaway car will be in trouble, even if he does not rob the store. The imposition of secondary liability is common throughout the law. Those who aid or abet the commission of wrongs, or who benefit from them, are frequently held liable.

For example, someone who sells burglar tools to a burglar is guilty of aiding and abetting if the burglar uses the tools to commit a burglary. And someone who induces a breach of contract is liable to the victim of the breach, even though the victim could just have sued the other party to the contract for breach of contract.

The copyright laws do not expressly provide for secondary liability for copyright infringement. But the courts, in a long series of cases, have imposed liability on those who facilitate or profit from copyright infringement. Thus there are two main strands of secondary liability for copyright infringement: contributory infringement and vicarious liability.

The standard definition for contributory copyright infringement is when the defendant, "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." In other words, the record labels must not only show ownership of a valid copyright and unlawful copying but must show that the P2P company 1) had knowledge of the infringing activity and 2) materially contributed to the infringing conduct. Again, this is for the purpose of holding someone other than the infringer liable for copyright infringement.

Vicarious liability is another means of holding someone liable for copyright infringement even when that person or party is not the one who did the infringing. In order to find a defendant liable under the theory of vicarious liability for the actions of an infringer, it must be shown that the defendant 1) has the right and ability to control the infringer's acts, and 2) receives a direct financial benefit from the infringement.[3] Unlike contributory infringement, knowledge is not an element of vicarious liability. However, courts have determined that the combination of the right and ability to control the infringer's acts and the receipt of a direct financial benefit from the infringement suffices to hold a defendant vicariously liable for copyright infringement, even if the defendant had no knowledge of the particular infringement.

Here are some short outlimes of court cases about contributory infringement:

• MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 (2005)
• Sony Corp. Of Amer. v. Universal City Studios, Inc., 464 U.S. 417 (1984).