Your Guide to Litigating Direct and Secondary Liability Claims in Copyright Litigation

Person in black stealing intellectual property represented by a light bulb while an onlooker sitting in a chair fumes with question marks in a arc over his head.

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?

For answers to these questions and more take a look at the Primer on Direct and Secondary Liability in the blog’s Copyright Learning Center.

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.