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17.21 Derivative Liability—Contributory Infringement

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17.21 DERIVATIVE LIABILITY—CONTRIBUTORY INFRINGEMENT

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 [induces] [materially contributes to] that infringing activity.

If you find that [name of direct infringer] infringed the plaintiff’s copyright in [allegedly infringed work], you may proceed to consider the plaintiff’s claim that the defendant contributorily infringed that copyright. To prove copyright infringement, the plaintiff must prove 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.

Comment

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, 125 S. Ct. 2764 (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 non-infringing use. Id. at 2780. The Court characterized this as the inducement rule. Id.