17.20 DERIVATIVE LIABILITY—VICARIOUS INFRINGEMENT—ELEMENTS AND BURDEN OF PROOF
If you find that [name of direct infringer] infringed the plaintiff’s copyright in [name of allegedly infringed work], you may consider the plaintiff’s claim that [name of alleged vicarious infringer] vicariously infringed that copyright. The plaintiff has the burden of proving each of the following by a preponderance of the evidence:
1. the defendant profited directly from the infringing activity of [name of direct infringer];
2. the defendant had the right and ability to [supervise] [control] the infringing activity of [name of direct infringer][.] [; and]
[3. the defendant failed to exercise that right and ability.]
If you find that the plaintiff proved each of these elements, your verdict should be for the plaintiff if you also find that [name of direct infringer] infringed plaintiff’s copyright. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant [name of alleged vicarious infringer].
In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 125 S. Ct. 2764, 2776 n.9 (2005), the Supreme Court noted that vicarious liability "allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer, even if the defendant initially lacks knowledge of the infringement." However, the Grokster Court declined to apply the theory. Id. See Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004) ("A defendant is vicariously liable for copyright infringement if he enjoys a direct financial benefit from another’s infringing activity and "has the right and ability to supervise" the infringing activity") (emphasis in original) (quoting A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001)).
In certain cases, it may be appropriate to instruct the jury upon the meaning of "control" or "financial benefit" for purposes of vicarious infringement. See Napster, 239 F.3d at 1023–24 (defendant’s ability to block or police use of its internet service is evidence of the right and ability to supervise); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262–63 (9th Cir.1996) (detailing the elements of vicarious infringement in the absence of an employer-employee relationship).