Citation Edit

Adobe Sys., Inc. v. Canus Productions, Inc., 173 F.Supp.2d 1044, 1051 (C.D. Cal. 2001) (full-text).

Factual Background Edit

Adobe Systems brough a copyright infringement action against the proprietor of weekly computer fairs where approximately one hundred pirated copies of Adobe Systems software were located at shows that averaged up to 15,000 attendees per weekend.[1]

Trial Court Proceedings Edit

On plaintiff's motion for summary judgment the court discussed Fonovisa v. Cherry Auction and its requirement of direct financial benefit.[2] The court read into Fonovisa, Inc. v. Cherry Auction, Inc.'s[3] discussion of vicarious liability for copyright infringement a requirement to show "a direct financial benefit to the defendant from the 'draw' of the infringing products."[4] At different points in the opinion this idea was expressed in language such as:

  • "the sale of the counterfeit products must in fact be the 'draw' for customers to the venue." Id. at 1050 (emphasis added).
  • "Plaintiffs must show that the vendor's infringement constitutes a draw to the venue to the extent that the economic interests of the direct infringer and those of the landlord become closely intertwined." [5]
  • "[P]laintiff bears the burden of demonstrating a direct financial benefit to the landlord from 'customers seeking to purchase infringing recordings' and profits which 'flow directly from customers who want to buy the counterfeit recordings.'"[6]
  • "Without the requirement that the counterfeit goods provide the main customer draw, Fonovisa would 'provide essentially for the limitless expansion of vicarious liability into spheres wholly unintended by the court.'"[7]
  • "Fonovisa found a symbiotic relationship existed between the infringing vendors and the landlord because 'the very success of the landlord's venture depends on the counterfeiting activity (and thus the landlord has every incentive to allow the activity to continue).'"[8]

The court then concluded that on the facts of the case, where both the number of infringements and the apparent impact of these infringements was small, there was not a symbiotic relationship and that there were triable issues of fact remaining as to whether the infringing products constituted a draw.[9]

References Edit

  1. Id. at 1047.
  2. Id. at 1050-53.
  3. 76 F.3d 259, 37 U.S.P.Q.2d (BNA) 1590 (9th Cir. 1996)(full-text).
  4. 173 F.Supp.2d at 1050.
  5. Id. at 1051.
  6. Id. at 1050.
  7. Id. at 1051 (emphasis added).
  8. Id. at 1051.
  9. Id. at 1052.

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