Intellectual Property | Copyright Infringement | Technology | Software

What is Contributory Copyright Infringement?

Dec 3rd, 2016 | By | Category: Copyright Litigation

Copyright Infringement Essentials – Understanding “Contributory Infringement”

infringement defense atty


This blog discusses what you need to know about a cause of action for “contributory” copyright infringement, which in essence is a type of “aiding and abetting” of infringing software, books, movies, films, videos, jewelry, literature, poems, art, photographs or other items.

What does it take to prove a copyright infringement case?

The first important point is to understand what copyright infringement is. As one federal court in the Northern District of California noted:

“To establish a claim of copyright infringement, a plaintiff must demonstrate:

(1) ownership of a valid copyright


(2) “copying” of protectable expression by the defendant.

See Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987). Infringement occurs when a defendant violates one of the exclusive rights of the copyright holder. 17 U.S.C. § 501(a).

These rights include the right to reproduce the copyrighted work, the right to prepare derivative works, the right to distribute copies to the public, and the right to publicly display the work. 17 U.S.C. §§ 106(1)–(3) & (5).”

See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1366–67 (N.D. Cal. 1995)

Federal Caselaw on Contributory Infringement

In Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1199–200 (N.D. Cal. 2004), the Northern District Court in California discussed this legal concept:

“There is no statutory rule of liability for contributory infringement. However, courts recognize such liability when the defendant “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2nd Cir.1971). “Such participation must be substantial.Religious Tech. Ctr., 907 F.Supp. at 1361.

The party alleging contributory infringement must show:

(1) direct infringement by a primary infringer

(2) knowledge of the infringement,


(3) material contribution to the infringement.” See Metro–Goldwyn–Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1160 (9th Cir.2004).

A defendant may be liable under a vicarious liability theory if the plaintiff demonstrates:

(1) direct infringement by a primary party,

(2) a direct financial benefit to the defendant, and the right and ability to supervise the infringers.”

This legal concept can pop up in virtually any type of copyright case including software audits where a company is accused of allowing contractors (that are performing work on behalf of the company under audit) to use infringing copies of Autodesk software or Microsoft or Adobe for example.

In another case from the ninth circuit – Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1373 (N.D. Cal. 1995) the Court discussed:

Netcom is not free from liability just because it did not directly infringe plaintiffs’ works; it may still be liable as a contributory infringer. Although there is no statutory rule of liability for infringement committed by others,
[t]he absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringement on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.
Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984) (footnote omitted). Liability for participation in the infringement will be established where the defendant, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.”Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971).

There must be “substantial” contribution

Where a defendant has knowledge of the primary infringer’s infringing activities, it will be liable if it “induces, causes or materially contributes to the infringing conduct of” the primary infringerGershwin Publishing, 443 F.2d at 1162. Such participation must be substantial. Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D.Cal.1993), aff’d, 35 F.3d 1435 (9th Cir.1994); Demetriades v. Kaufmann, 690 F.Supp. 289, 294 (S.D.N.Y.1988).
See Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1375 (N.D. Cal. 1995).

Copyright Infringement by Selling Products that Induce infringement

“To prove copyright infringement on an inducement theory, Columbia also had to adduce “evidence of actual infringement by” users of Fung’s services. Grokster III, 545 U.S. at 940, 125 S.Ct. 2764. This they have done.  Both uploading and downloading copyrighted material are infringing acts. The former violates the copyright holder’s right to distribution, the latter the right to reproduction. See 17 U.S.C. § 106(1) & (3); Napster, 239 F.3d at 1014.
Based on statistical sampling, Columbia’s expert averred that between 90 and 96% of the content associated with the torrent files available on Fung’s websites are for “confirmed or highly likely copyright infringing” material. Although Fung takes issue with certain aspects of the expert’s methodology, he does not attempt to rebut the factual assertion that his services were widely used to infringe copyrights. Indeed, even giving Fung the benefit of all doubts by tripling the margins of error in the expert’s reports, Columbia would still have such overwhelming evidence that any reasonable jury would have to conclude that the vastly predominant use of Fung’s services has been to infringe copyrights.  In sum, as in Grokster III, “[a]lthough an exact calculation of infringing use, as a basis for a claim of damages, is subject to dispute, there is no question” that Plaintiffs have met their burden on summary judgment to warrant equitable relief. Grokster III, 545 U.S. at 940–41, 125 S.Ct. 2764.

See Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1034 (9th Cir. 2013)

Contact a Software, IP & Copyright Law Firm

We have substantial experience handling federal copyright law matters dealing with infringed software, movies, and photos.  Contact us to discuss your case with an IP copyright attorney.  We can be reached at (877) 276-5084.  We offer flat rate legal fees for most non-litigation cases.

The following two tabs change content below.
We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

Latest posts by Vondran Legal - Civil Litigation firm handling Software audits, Copyright Infringement, Internet law, and general Business & Real Estate law (see all)

Comments are closed.