Contributory liability

Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringing activity. In the United States, the Copyright Act does not itself impose liability for contributory infringement expressly. It is one of the two forms of secondary liability apart from ‘vicarious liability’. Contributory infringement is understood to be a form of infringement in which a person is not directly violating a copyright but, induces or authorises another person to directly infringe the copyright.

This doctrine is a development of general tort law and is an extension of the principle in tort law that in addition to the tortfeasor, anyone who contributed to the tort should also be held liable.

Contributory infringement is a purely court made doctrine based entirely upon judicial precedent as opposed to legislation. The US Copyright statute does not contain any specific provision to impose liability for contributory infringement. Instead, this doctrine is based on principles developed by courts. The requirements for fulfilling the threshold of contributory infringement and imposing liability for copyright infringement on a party are-

Contributory infringement leads to imposition of liability in two situations. First situation is when the defendant, through his conduct, assists in the infringement, and the second situation is when the means for facilitating the infringement such as machinery is provided by the defendant.

The knowledge requirement for contributory infringement is an objective assessment and stands fulfilled if the defendant has actual or constructive knowledge of an infringement, i.e., if he or she has reason to believe that an infringement is taking place. But, constructive knowledge need not be imputed to the defendant if the product was capable of significant noninfringing uses.

Material contribution is the second limb of contributory infringement. For instance, merely providing facilities or the site for an infringement might amount to material contribution. But, some courts put emphasis on the contribution to be ‘substantial’ and therefore, would hold that providing equipment and facilities for infringement is not in itself determinative of material contribution.

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Wikipedia