I.
Vicarious & Contributory Infringement
A. Difference between:
1. Vicarious liability - based on employer/employee
a. Direct infringement
b. Financial benefit
c. Ability to supervise
2. Contributory infringement
a. Direct infringement
b. Knowledge
c. Material contribution (inducement)
B. Cases
1. Fonovisa, p. 769
2. UMG Recordings v.
Sinnott, 300 F. Supp.2d 993
(E.D. Cal. 2004)
3. Sony, p. 777
II. Audio Home Recording Act, p. 786
A. Digital autio tape (DAT)
B. Serial copy management system
C. RIAA v. Diamond Multimedia, p. 790
III. Online Service Provider Liability - § 512
A. Two types of OSPs
1. Passive conduits - § 512(a) - merely provide
Internet
access. They may not:
a. Initiate transmission that contains copyrighted
material,
b. Select the material sent,
c. Select the recipients,
d. Modify the content of the material, or
e. Copy or retain the material longer than is necessary.
2. Provide online services (such as hosting webpages) -
a. Not have actual knowledge material or activity
infringing,
b. Not be aware of facts/circumstances upon which
infringing activity is apparent,
c. Upon obtaining actual knowledge or awareness,
expeditiously remove material [Notice & take down],
d. Not receive a financial benefit attributable to
infringing material,
e. Upon notification, act expeditiously to remove material
from system, and
f. Not return the material to the system absent
investigation
finding posting material not infringing.
3. To take advantage of exemption as OSP, § 512(c)(2),
it must:
a. Name agent to receive complaints of such infringement
b. Publish name, address, phone number & email address
of the agent
4. Additional exemption for nonprofit educational institutions
that are OSPs
a. Faculty members & graduate students teaching &
b. Their activities & knowledge not considered
to be that
of institution for determining liability for infringement
if three conditions met:
1. Their infringing activities do not involve providing
online materials that were assigned or required
within preceding 3-year period, &
2. Institution has not received more than two
notifications of infringement by such individuals
within the preceding 3 years, &
3. Institution provides to all users of the system
materials that accurately describe and promote
copyright law compliance.
B. Verizon, Supp. 531
IV. Peer-to-Peer
A. UMG Recordings v. MP3.Com, on p. 506
B. Napster, p. 797
C. In re Aimster, cited p. 810
D. Grokster, Supp. p. 534
V. Criminal Liability
A. Willful infringement
B. Purposes of commercial advantage or private financial
gain
C. No Electronic Theft Act, NETAct
1. Willfulness = more than simple proof of conduct
violating Act
2. Penalties
a. Works having combined retail value of $2500 +
1. 5 years in federal prison
2. $250,000 fines
b. Works valued at $1000 + within 6 months
1. One year in federal prison
2. $100,000 fine
3. Levy prosecution
4. DOJ prosecutions
