This chapter is being reviewed in light of comments solicited by the Committee from the public.
17.20 DERIVATIVE LIABILITY—CONTRIBUTORY INFRINGEMENT—ELEMENTS AND BURDEN OF PROOF
A defendant may be liable for copyright infringement engaged in by another if [he] [she] [it ] knew or had reason to know of the infringing activity and intentionally [induced] [materially contributed to] that infringing activity.
If you find that [name of direct infringer] infringed the plaintiff’s copyright in [allegedly infringed work], you must determine whether [name of alleged contributory infringer] contributorily infringed that copyright. The plaintiff has the the burden of proving both of the following elements by a preponderance of the evidence:
1. the defendant knew or had reason to known of the infringing activity of [name of direct infringer]; and
2. the defendant intentionally [induced] [materially contributed to] [name of direct infringer’s] infringing activity.
If you find that [name of direct infringer] infringed the plaintiff’s copyright and you also find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either or both of these elements, your verdict should be for the defendant.
Theabove instruction is based on Fonovisa, Inc. v. Cherry Auction, Inc. 76 F.3d 259, 261-63 (9th Cir.1996), and Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004).
In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), the Supreme Court held that one who distributes a device with the object of promoting its use to infringe a copyright may be liable for the resulting acts of infringement by third parties, even if the device is capable of substantial noninfringing use. Id. at 2780. The Court characterized this as the inducement rule. Id. This rule was refined and formalized into four elements in Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir.2013). See id. at 1032 (listing these "four elements: (1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation"); see also Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir.2007) (describing inducement rule and material contribution test as "non-contradictory variations on the same basic test")