Before starting a copyright infringement litigation a plaintiff needs to answer these questions:
a. Who is the primary infringer?
b. If that defendant directly infringed, did it engage in what the courts refer to as volitional conduct?
c. Are there also claims for secondary liability against other defendants for contributory or vicarious infringement (referred to collectively as secondary liability)?
d. If contemplating a claim for contributory or vicarious infringement against a party, what elements must be proven?
e. To subject a defendant to secondary liability, must there also be direct infringement by another?
f. Do direct, contributory and vicarious liability overlap so it’s possible a defendant may be liable for all these forms of liability?
g. Are direct and secondarily liable infringers jointly and severally liable? If so, how many grants of statutory damages may plaintiff be awarded against multiple infringers?
The primer outlines the three forms of copyright liability under § 106 of the Copyright Act: direct, and the two forms of secondary liability, contributory and vicarious infringement. The primer next discusses the importance of secondary liability and then details the elements necessary to establish these three forms of liability. The primer ends with a discussion of the impact of joint and several liability on the number of grants of what are called statutory damages.