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Content Owners' Pursuit of Secondary Infringement Claims

By Alan R. Friedman

Eliminating an Internet service provider's right to safe harbor protection is merely a first step in establishing its liability as a secondary copyright infringer. The plaintiff still must demonstrate that the elements for secondary infringement are present. As illustrated in the Hotfile, Columbia Industries and Lime Group cases discussed in Part One of this article last month, meeting this burden at the summary judgment stage is an achievable but, even with a strong factual record, not an assured outcome.

Secondary liability can be imposed on an ISP or distributor of a product used to commit infringement based upon claims of contributory infringement, inducement infringement or vicarious infringement. The contributory and inducement claims both focus on a defendant's contribution to the infringement and require that the defendant knows that direct infringement is occurring. These related claims, which provide independent ways to attack secondary infringement, differ in important respects.

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