Has the DMCA Shrunk Contributory Infringement and Vicarious Liability?
The common law doctrines of contributory infringement and vicarious liability are a staple of copyright infringement law. But the Digital Millennium Copyright Act (“DMCA”) has significantly reshaped these doctrines. Naomi Jane Gray, Esq., in her remarks to the Copyright Subcommittee of the Intellectual Property Litigation Committee of the ABA on September 28, 2010, clearly charted the changes the DMCA has made to secondary liability. Naomi’s fine outline of her talk (the “Outline”) is here. I set forth below some of the noteworthy changes to secondary liability drawn from the Outline. Does Red-Flag Knowledge Still Exist under the DMCA? The doctrine of contributory infringement requires three elements: direct infringement by a third party; knowledge or reason to know of a third party’s direct infringement; and substantial participation by the defendant in the infringing activities. The DMCA seemingly incorporates the knowledge element when it creates what the statute refers to as a safe
