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Authorization UK/HK Law (indirect/third party liability through primary liability) (section
22(2) of the Copyright Ordinance):
One may be primarily liable for violating the right to authorize any act restricted under copyright.
Liability to any person who grants or purports to grant the right to commit the infringing act.
Liability may arise for authorizing an infringing act without the copyright owners consent.
In a leading case, while a company made and sold a dual-cassette deck to purchasers highly likely to
reproduce copyright-protected material, the court did not find that it thus authorized infringements,
stressing that the device could be used for both legitimate and illegitimate purposes and that the
company could not control its ultimate use (C.B.S. Songs v. Amstrad [1988] 2 All E.R. 484
(House of Lords)).
In online cases, service providers have been found to authorize infringing file-sharing upon indexing
and other acts of facilitation, sometimes coupled with inducement, while providers of decoders have
been found to authorize infringing acts of communicating and showing encoded broadcasts.
Twentieth Century Fox v. Newzbin [2010] EWHC 608 (Ch) (authorization in indexing and
providing one-click online access to Usenet files for the benefit of paying subscribers);
Dramatico Entertainment Ltd. v. British Sky Broadcasting Ltd. [2012] EWHC 268 (Ch), paras.
7381 (authorization by Pirate Bay operators in indexing and arranging torrent files, in failing to
remove infringing torrents or prevent infringements, and in inducing infringement);
EMI Records Ltd. v. British Sky Broadcasting Ltd. [2013] EWHC 379 (Ch), paras. 5270
(authorization by website operators who provided directories of Bittorrent files that gave access to
infringing material, did so for profit, and made no real efforts to prevent infringement);
Paramount Home Entertainment International Ltd. v. British Sky Broadcasting Ltd. [2013]
EWHC 3479 (Ch) (confirming that, while the mere provision of a hyperlink may not constitute a
communication to the public, the right was infringed by a website that comprehensively referenced
links to infringing content).
Football Association Premier League Ltd. v. QC Leisure [2012] EWHC 108 (Ch), para. 81,
affirmed, [2012] EWCA Civ 1708 (providers of decoders have been found to authorize infringing
acts of communicating and showing encoded broadcasts).
US Law:
Indirect Liability:
Two alternate tracks: Contributory Liability + Vicarious Liability:
(A &M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); In re Aimster Copyright Litig. 334
F.3d 643 (7th Cir. 2003)).
Contributory Infringement:
(1) Direct infringement by a primary infringer,
(2) Knowledge of the infringement, and
(3) Material contribution to the infringement.
Vicarious Infringement:
(1) Direct infringement by a primary party,
(2) A direct financial benefit to the defendant, and
(3) The right and ability to supervise the infringers.
The Sony Exception to the two tracks a strict immunity rule: when a product is capable of
substantial non-infringing use, its mere production and distribution do not impose secondary liability
for third parties' infringing uses of it (even if all conditions are met) a tape recorder, a video
recorder, a dvr, a photocopying machine (Sony Corp. v. Universal City Studios, Inc., 464 U.S.
417 (1984).
The Grokster Exception to the Sony Exception:
Inducement: if one distributes such devices with the object of promoting its use for copyright
infringements, or by taking other affirmative steps to foster copyright infringements, this third-party
would be liable for acts of infringements by primary users of the devices, regardless of the fact that
basically, the device is also capable of lawful uses (Metro-Goldwyn-Mayer Studios, Inc. v. Grokster
Ltd. 545 U.S. 913 (2005)).
TBD
Devices <>Technologies<>Information<>Facilities.
The challenge of a user empowered environment.