© Contributory and vicarious infringement
Unlike direct infringement, the standards for contributory infringement are not codified in the Copyright Act. Instead this is a common law concept based on the relationship between the contributory infringer and the infringing activity.
Contributory infringement implies a connection to the infringing activity. Vicarious infringement, on the other hand, implies a connection to the direct infringer, not the infringing activity. For example, a supervisor of an employee who violates copyright law can be found liable for vicarious infringement, in some cases, because of that supervisor's control over the work and his or her direct financial benefit from the work.
Example
The landmark 1971 case, Gershwin Publishing Corporation v. Columbia Artists Management, Inc., established the test for contributory infringement, namely that the knowledge of the act of infringement is derived from some level of control over the act. On this theory, a BBS, for instance, can be found liable if it is aware of infringing activity occurring on its service but fails to remove the infringing material. As an example, in the 1996 case, Fonovisa Inc. v. Cherry Auction, Inc., the defendant, an Internet auction site, was found liable for vicarious infringement arising from the activities of clients that were selling copyrighted music illegally.
Cherry Auction was aware of the infringing activity but failed to remove the sellers from its auction service. In effect, the defendant both had control over the infringing activity and benefited financially from the activity through fees charged to sellers. Furthermore, the court found that Cherry Auction could be held liable for contributory infringement because of its direct knowledge of the infringing activity.
