Algorithm for Analyzing Liability for Contributing to Copyright Infringement

By John Ottaviani

Professor David Post has an interesting article (free subscription required) in the August 3, 2005 issue of the National Law Journal, in which he reviews the “Sony doctrine” of secondary liability for copyright infringement. In Sony, the United States Supreme Court found that the sale of video tape recording technology that was also used to infringe copyrights did not in and of itself constitute contributory copyright infringement if the product is “merely capable of substantial non-infringing uses.” The article goes on to review the 2001 Napster decision before reviewing the Supreme Court’s recent Grokster decision and integrating that decision into the existing body of precedent.

The interesting part of the article sets forth an “algorithm” for developers of peer-to-peer file sharing software to use to assess their risk of secondary liability:

Are you distributing a product that is used to infringe copyrights?

If no, stop – no contributory copyright liability.

If yes, are you – “by overt words and deeds [that] show a purpose to cause and profit from third-party acts of copyright infringement” – actively encouraging or promoting infringement(s) by users?

If yes, stop – you are liable as a contributory infringer. MGM v. Grokster.

If no, do you have “actual knowledge of specific infringements” and the capability to stop those infringements?

If yes, stop – you are liable as a contributory infringer. A&M v. Napster.

If no, is the product “capable of substantial non-infringing uses”?

If yes, stop – you are within the Sony safe harbor and shielded from liability.

If no, stop – you are liable as a contributory infringer, because courts will impute the requisite intent to encourage infringement to you.

Obviously, the algorithm oversimplifies the analysis, but it looks to be a useful tool for helping developers to get their arms around the potential for secondary liability and the ability to “design around” the law. I am going to see if I can work the “vicarious” copyright infringement theory into this algorithm, or build a similar one for that analysis.

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