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Vicarious Liability and Copyright Law: Breaking with Tradition
Vicarious liability is applicable in most areas of tort law. As the U.S. Supreme Court stated in an opinion early last year, “traditional vicarious liability rules ordinarily make principals or employers vicariously liable for acts of their agents or employees in the scope of their authority or employment.” Meyer v. Holley, 537 U.S. 280, 283 (2003).
In the area of copyright law, however, courts have developed an expanded form of vicarious liability that has been applied without regard for traditional limits on vicarious liability. The Ninth Circuit described this court-created copyright rule in its 1996 decision, Fonovisa, Inc. v. Cherry Auction, Inc.: “The concept of vicarious copyright liability was developed in the Second Circuit as an outgrowth of the agency principles of respondeat superior. … Noting that the normal agency rule of respondeat superior imposes liability on an employer for copyright infringements by an employee, the court endeavored to fashion a principle for enforcing copyrights against a defendant whose economic interests were intertwined with the direct infringer's, but who did not actually employ the direct infringer.” 76 F.3d 259, 262 (9th Cir. 1996) (citing Shapiro, Bernstein and Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir.1963)). In light of Fonovisa and the Second Circuit case law it followed, courts now impose vicarious liability for copyright infringement where the defendant has “the right and ability to supervise infringing activity and also has direct financial interest in such activities,” regardless of whether a principal/agent relationship exists. See In re Aimster Litigation, 252 F.Supp.2d 634, 654 (N.D. Ill. 2003).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.