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Hastings Communications and Entertainment Law Journal

Abstract

In a recent decision, Fonovisa v. Cherry Auction, the Ninth.Circuit allowed a record company to sue a swap meet for copyright infringement committed by the swap meet's vendors. The vendors rented a stall from the Cherry Auction swap meet and sold counterfeit music cassettes that infringed the plaintiff Fonovisa's copyright. The Ninth Circuit held that the swap meet could be sued under theories of contributory infringement and vicarious infringement.

The Fonovisa decision extends the scope of third-party copyright infringement liability beyond previously established boundaries. This extension may make it much easier to hold an online service provider (OSP) liable for its customers' infringement. In light of the Fonovisa decision, this Note examines the extent to which an OSP might be liable when a customer uses it's system to violate a copyright.

This Note discusses various views of the extent to which OSPs should be held liable for user infringement, and recounts the ways that courts have applied copyright infringement principles to OSPs. This Note also criticizes the Fonovisa decision, points out how the case extends third party liability to new levels, and explains how the opinion sets a precedent that may be used unfairly against OSPs. This Note concludes by recommending that courts not rely on the Fonovisa decision to determine OSP liability, and instead cautiously apply more traditional concepts of third party liability.

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