Re: Contributory Infringement

On 9/24/98, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> I seem to recall reading somewhere that you can't bring a claim of
> contributory infringement unless there is also a direct infringement.
> But I can't find it now, and I'm beginning to wonder if I just made it
> up. Does anyone on the list know whether "contributory infringement"
> constitutes a claim in its own right, or must be attached to a claim
> of direct infringement? It seems evident to me that there can't be a
> contributory infringement unless there is a direct infringement; but I
> remember cases like the Sony Betamax case, where it was claimed that
> distribution of VCRs contributed to infringement, but I don't believe
> any end users were actually sued for direct infringement. So the
> questions are:
>
> (a) Can you make a claim for contributory infringement alone?

In Sony v. Universal, I don't believe that any of the alleged direct infringers (consumers) were named as defendants.

> (b) If not, is it sufficient merely to show that there is or could be
> a direct infringement? or
>
> (c) Do you have to actually name a direct infringement defendant in
> order to bring an action against a contributory infringement
> defendant?

Again, my recollection of Sony is that indivdual direct infringers were not named anywhere, but there had to be proof that such direct infringers did exist. Almost he whole discussion in Sony, with the objective of determining whether manufacturers of VCRs could be liable as direct infringers, focused on whether this obvisously existing group of alleged direct infringers could make any substantial noninfringing use of the VCRs. The Court's discussion made it clear that there were a number of ways in which consumers could use VCRs in an infringing manner, but that there was at least one substantial noninfringing use (time-shifting for one-time only viewing was fair use). Then, of course, after Sony, a big-time noninfringing use developed in the market--video rentals.

John Allison
allisonj[_at_]utexas.mail.edu Received on Fri Sep 25 1998 - 15:10:59 GMT