Thinking of starting a copyright litigation? You need to answer a number of questions to assure a successful outcome. The questions include:
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. Do you also have claims for secondary liability against other defendants for contributory or vicarious infringement (referred to collectively as “secondary liability”)?
d. If so, what elements must you allege and prove?
e. Is one of those elements 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 you be awarded against multiple infringers acting together?
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.