Secondary Liability Toolkit: Repeat Infringer Policies, Notice Workflows, and Inducement Audits

How to use this toolkit

These are working papers. Copy what fits, adapt the bracketed placeholders, and have counsel review anything that goes outside the company or into a court. They assume the law as of 3 November 2026, when Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. 583 (2026), limits contributory liability to inducement and services tailored to infringement, leaves vicarious and direct liability where they were, and holds that the DMCA safe harbors create defenses, not liability.

Tools 1 to 11 are for operators, and Tools 12 to 16 are for rightsholders. For the reasoning, read Contributory and Vicarious Copyright Liability After Cox v. Sony: Who Pays When Someone Else Infringes. For sequence and worked examples, read Assessing and Reducing Secondary Copyright Liability: A Practical Guide. For a desk review, use Secondary Copyright Liability Risk Checklist: A Practical Checklist.

Tool 1: Function and theory matrix

Purpose: Show on one page where each product is exposed. Owner: Operator's counsel with the product lead. Timing: Annually and before any new product launches.

Rate each cell as L, M, H, or N/A. Write one sentence of justification and name the evidence relied on.

Drafting notes. Evaluate each function separately, as 17 U.S.C. § 512(n) does. For the direct column, ask the causation question from Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir. 2017). For the tailored column, list individual scripts and plug-ins, since Nazemian v. NVIDIA Corp., No. 24-cv-01454-JST, ECF No. 303 (N.D. Cal. May 5, 2026), examined scripts rather than the larger framework, while United King Film Distribution (1990) Ltd. v. MoonPay USA LLC (S.D. Fla. July 13, 2026), looked to the capability of the service as a whole. Keep this matrix within the privileged review.

Tool 2: Public repeat infringer policy

Purpose: Satisfy the requirement in 17 U.S.C. § 512(i)(1)(A) that a provider adopt a policy and inform users of it. Owner: Legal and trust and safety. Timing: Publish now, link from the terms and the DMCA page, and review annually.

Copyright and Repeat Infringer Policy

[Company] respects the rights of copyright owners and requires users to do the same. You may not use [Service] to infringe copyright.

Reporting. Copyright owners and their agents may send notices of claimed infringement to our designated agent: [Agent name], [Company], [Address], [Email], [Phone].

What we do. When we receive a notice that substantially meets the requirements of 17 U.S.C. § 512(c)(3), we will remove or disable access to the identified material and take reasonable steps to notify the user who posted it. We may also act on our own when we become aware of infringing material.

Counter notices. If you believe material was removed by mistake or misidentification, you may send a counter notice to the designated agent that includes the information required by 17 U.S.C. § 512(g)(3). We will restore the material as the statute provides unless the complaining party tells us it has filed suit.

Repeat infringers. It is our policy, in appropriate circumstances, to terminate the accounts of users who repeatedly or blatantly infringe copyright. We keep records of notices and may consider the number and seriousness of incidents, how recent they are, successful counter notices, and any other relevant information. We may suspend or terminate an account at any time for repeated or serious infringement. Terminated users may not create new accounts.

False claims. Knowingly and materially misrepresenting that material is infringing, or that it was removed by mistake, may result in liability under 17 U.S.C. § 512(f).

Drafting notes.

• Repeat infringers need not be adjudicated. BMG Rights Management (US) LLC v. Cox Communications, Inc., 881 F.3d 293 (4th Cir. 2018), rejected that reading, and it is unaffected by Cox.
• The public policy does not need a fixed strike count. Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir. 2018), accepted a judgment-based approach whose details were not written down.
• "Repeatedly or blatantly" tracks the standard in Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), which the Second Circuit adopted in McGucken v. Shutterstock, Inc., No. 23-7652 (2d Cir. Feb. 10, 2026).
• Describe what you do, not what you hope to do. In MoonPay, a deception claim failed because terms governing users' conduct do not promise policing. Keep them that way.
• Do not advertise your thresholds. A published number invites people to stay one strike below it.
• Include the agent details on the site and register them with the Copyright Office. See § 512(c)(2) and 37 C.F.R. § 201.38, in 37 C.F.R. Part 201. Designations expire three years after registration unless renewed.

Tool 3: Internal implementation standard

Purpose: Turn the policy into consistent operating rules, and create the record that shows reasonable implementation. Owner: Head of trust and safety. Timing: Adopt now; review data quarterly.

Version A: hosting, platform, or marketplace (account and content are known).

Version B: access provider or conduit that keeps a program (only the account is known).

Principles for both.

1. Revenue is not a factor. Do not put monthly revenue into the review screen. The Fourth Circuit's opinion quoted an internal message that gave a subscriber another chance because "he pays 317.63 a month."
2. Terminated means terminated. In BMG, routine reactivation ("DMCA = reactivate"), followed by a near halt to terminations, cost Cox the harbor.
3. Do not cap, reset, or filter notices in ways you could not defend in front of a judge. BMG lists per-sender daily limits, one-notice-per-day counting, and a six-month reset among the weaknesses of Cox's system.
4. Account for shared connections in Version B. Justice Sotomayor's concurrence explains why a notice shows a connection, not a person. That is a legitimate reason for caution with regional ISPs, schools, and hospitals. It should be applied by a written rule, not by whoever happens to be on shift.
5. Consider counter notices and false positives. A fair standard is more defensible than a mechanical one.

Quarterly data pull. Notices received; valid and invalid; median and 95th percentile time to action; accounts at each strike level; terminations; reactivations; exceptions and who approved them; top repeat accounts by notice count.

Drafting notes. No statute or case prescribes a number of strikes. Courts look at the outcome: does the provider actually terminate those who repeatedly or blatantly infringe in appropriate circumstances? McGucken excused one miss among millions of contributors. Expeditious response also has no set number, though four days was enough there. If a conduit decides to retire the program after Cox, record the decision and reasons with counsel. Note that Cox relied on warnings and terminations in finding no inducement, and that the harbor's limits on injunctions in § 512(j) would no longer be available.

Tool 4: Notice workflow and service levels

Purpose: Move every notice through the same path, quickly, with a record. Owner: Trust and safety. Timing: Implement now; test twice a year.

Drafting notes. Knowledge is tied to specific items under Viacom, UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013), and Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir. 2016), and having matching tools does not change this: Athos Overseas Ltd. v. YouTube, Inc., No. 23-13156 (11th Cir. Jan. 7, 2026). Section 512(m) does not condition the harbor on monitoring. Conduit notices fall outside this flow, because a conduit has nothing to take down, as In re Subpoena of Internet Subscribers of Cox Communications, LLC (9th Cir. Aug. 15, 2025), explains. The takedown side is also covered in How to File a DMCA Takedown Notice (And Respond to One).

Tool 5: Operator response templates

Purpose: Consistent short responses that do not make admissions. Owner: Trust and safety. Timing: Every notice.

5A. Defective notice.

We received your message dated [date] about [URL or description]. It does not include [missing element(s)] required by 17 U.S.C. § 512(c)(3)(A). Please send a corrected notice to [agent email]. We have not removed the material at this time. Our requirements are posted at [link].

5B. Takedown confirmation to notifier.

We removed or disabled access to the material at the following location(s) on [date]: [list]. We could not locate material at: [list]. Please send working URLs. If the user sends a valid counter notice, we will give you a copy and will restore the material between 10 and 14 business days later unless you inform our agent that you have filed an action seeking a court order to restrain the user.

5C. Notice to user.

We removed [item] on [date] after receiving a copyright notice from [sender]. A copy of the notice is attached [redact as appropriate]. This incident has been added to your account record, and repeated or serious infringement may lead to termination. If you believe this was a mistake or misidentification, you may send a counter notice to [agent email] with the following information: [§ 512(g)(3) elements]. Sending a false counter notice may create liability under 17 U.S.C. § 512(f). You may wish to consult a lawyer.

5D. Warning to access subscriber (conduit).

We received a notice alleging that your internet connection was used on [date and time] to share [work] without authorization. We do not know who used the connection. Please make sure everyone using your connection knows that sharing copyrighted works without permission is prohibited by our terms and may be unlawful, and secure your Wi-Fi with a password. Repeated notices may lead to suspension or termination. To respond, contact [address].

Drafting notes. Keep the user template factual. Avoid telling users how to avoid detection; a message like that is the sort of "instructing" that Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), treated as inducement evidence. For 5D, check any statutory or contractual restrictions on your subscriber communications. For counter notices in practice, see Responding to a DMCA Takedown with a Counter-Notice: A Practical Checklist.

Tool 6: Inducement audit

Purpose: Find specific acts of encouragement before a plaintiff does. Owner: Counsel directs; marketing, product, sales, and support collect. Timing: Full audit annually and before a financing or sale; quarterly sampling of marketing and support.

Header for every audit document: Privileged and confidential. Prepared at the direction of counsel for the purpose of legal advice. That label is not enough on its own, so limit distribution and keep business decisions in separate documents. See Fed. R. Evid. 502.

Before you begin, check preservation. If a dispute is reasonably foreseeable, do not delete anything; fix going forward. Fed. R. Civ. P. 37(e).

6A. Marketing and external messages

6B. Internal communications

Search terms, tuned to your business: [top titles and artists], "piracy," "pirated," "infringing," "illegal," "free movies," "torrent," "rip," "bypass," "workaround," "takedown," "DMCA," "strikes," "labels," "don't look," "look the other way," "growth," "retention," "traffic," [names of shuttered pirate services].

Score each hit:

• Level 1. Bare awareness that infringement occurs. Under Cox, this alone does not establish contributory liability, but note it for § 512 knowledge and willfulness.
• Level 2. Frustration with notices or enforcement. The opinion recites this kind of evidence about Cox and finds no inducement, but it can color a case.
• Level 3. Business reasoning that links revenue or growth to infringement. Corroborating evidence under Grokster. Escalate.
• Level 4. A statement or decision to encourage, target, or facilitate infringement. Treat this as a priority matter for counsel.

6C. Product design

Drafting notes. Inducement requires that a provider "actively encourages infringement through specific acts" under Cox. Advertising is an example, not a requirement, per Nazemian. Operating and concealing a pirate service sufficed at default in Amazon Content Services LLC v. Weibley (M.D. Pa. June 10, 2026). A lone Instagram like did not in Ravazzani v. C K Collection, Inc. (S.D.N.Y. Sept. 28, 2026). Refusing to continue disabling keys did not in MoonPay. Paid leniency was held actionable before Cox in Concord Music Group, Inc. v. X Corp. (M.D. Tenn. Mar. 5, 2024). Metadata stripping can raise a separate problem under 17 U.S.C. § 1202. Grokster treats a failure to filter and an ad-based model as corroborating evidence, not independent grounds.

Tool 7: Marketing, sales, and support ground rules

Purpose: A one-page rule sheet the people who write copy will actually read. Owner: Department heads, with counsel. Timing: Onboarding and annual refresher.

Copyright ground rules for [Company] teams

1. Show our product working on content we own or have licensed. Keep the license on file.
2. Never name, show, or hint at a film, song, show, character, or other work as something users can get here unless we have rights and legal has approved.
3. Never compare us to a pirate service or say we are the place to go now that one has shut down.
4. Never promise that we won't act on complaints or that users won't get in trouble. Don't joke about it either.
5. If a customer asks how to get or copy a specific work, use the approved response below. Do not troubleshoot.
6. Don't like, share, or feature user posts without checking the content.
7. Don't buy keywords with titles or the names of pirate services.
8. If you see something obviously infringing, tell trust and safety. Don't investigate, and don't speculate in chat.
9. Exceptions to enforcement come only from trust and safety, never from sales.
10. Questions go to [legal contact].

Approved support response:

We can't help with finding or copying content you don't have rights to use. Our terms prohibit using [Service] to infringe copyright. For help with [feature], here's our general guide: [link].

Drafting notes. Grokster treated help with playing copyrighted material as evidence, and a rule telling sales not to grant exceptions addresses the revenue considerations described in Sony Music Entertainment v. Cox Communications, Inc., 93 F.4th 222 (4th Cir. 2024). Item 8 is for your benefit under § 512(c)(1)(A), since specific red-flag knowledge needs a response; staff are not required to go looking.

Tool 8: Feature launch copyright review

Purpose: Catch tailored or inducing features before release. Owner: Product manager, reviewed by counsel for high-risk items. Timing: Each launch that touches third-party content, datasets, or sharing.

Feature: [name] PM: [name] Target date: [date]

1. What does the feature do, in one sentence a judge would understand?
2. Whose content does it touch? [own / licensed / users' / third parties']
3. Can it be separately offered, downloaded, or described as its own tool? [Y/N]
4. List at least three lawful uses that exist today, with a real customer or test example for each.
5. What is the most likely infringing use? How likely is it? What in the design addresses it?
6. Does it make it easier to evade detection, takedowns, or copyright information? [Y/N; explain]
7. Does it make a copy, on our system, for our purposes? Where and for how long?
8. Does it change how we earn money from any content? [Y/N; explain]
9. What will launch marketing show?
10. Who approved the answers?

Result: [Go / Go with changes / Hold for counsel]

Drafting notes. Questions 3 and 4 track the capability test ("not capable of 'substantial' or 'commercially significant' noninfringing uses") and the narrow unit of analysis in Nazemian. Question 5 is written so honest answers are not harmful, and any answer that would embarrass you should stop the launch. Question 7 is the direct infringement check. Question 8 feeds Tool 9. Write the answers as you would want them read aloud. These forms are ordinary business records and will likely be discoverable.

Tool 9: Vicarious liability worksheet

Purpose: Test control and benefit by product. Owner: Finance and counsel. Timing: Annually and before pricing changes.

Drafting notes. Control: Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (legal right and practical ability); Perfect 10, Inc. v. Visa International Service Ass'n, 494 F.3d 788 (9th Cir. 2007); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001); Luvdarts, LLC v. AT&T Mobility, LLC, 710 F.3d 1068 (9th Cir. 2013). Benefit: Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963) (percentage of sales); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996) (draw); Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) (causal link); Erickson Productions, Inc. v. Kast, 921 F.3d 822 (9th Cir. 2019) (saved license fee insufficient); Sony Music (flat fee insufficient). Knowledge is not an element, so "we didn't know" belongs nowhere on this sheet.

Tool 10: Demand letter response and litigation hold

Purpose: A controlled first response. Owner: Counsel. Timing: Hold on the day of receipt; response within [7 to 14] days or as the letter reasonably requires.

10A. Response letter to a rightsholder.

Re: [Your letter dated [date]]

We represent [Company]. [Company] takes copyright seriously and maintains a policy for responding to notices of claimed infringement and for terminating repeat infringers in appropriate circumstances, available at [link].

[Company] processed the items identified in your letter under that policy. As of [date], it has removed or disabled access to the [number] items listed in Attachment A. It could not locate the items listed in Attachment B; please provide working locations. Please send future notices to our designated agent at [address].

Your letter asserts that [Company] is liable because it had knowledge of alleged infringement and continued to provide its service. The Supreme Court has rejected that theory. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. 583 (2026). If you contend that [Company] engaged in any specific act encouraging infringement, or that it is otherwise liable, please identify the facts. Please also provide the registration number and date for each work so that we can evaluate your claim.

This letter is for settlement and informational purposes, is not a complete statement of the facts or of [Company]'s position, and does not waive any right or defense.

10B. Litigation hold.

Legal hold: do not delete. [Company] has received a legal claim involving [subject]. Effective immediately, preserve all documents and data relating to [works, users, features, marketing, enforcement practices, revenue from the items] from [date] to the present and going forward, wherever kept, including email, chat, tickets, roadmaps, analytics, and personal devices used for work. Auto-delete is being suspended for [systems]. Do not discuss the claim in chat or email except with counsel. Do not change or remove relevant web pages without first checking with [contact]. Contact [name] with questions.

Drafting notes. Check whether the item-level response undermines any position in the letter. Do not cite Cox as if it disposed of direct or vicarious claims. Registration matters under 17 U.S.C. § 411(a) and 17 U.S.C. § 412. Hold scope should reach marketing and product custodians because intent evidence lives there. Preservation failures are governed by Fed. R. Civ. P. 37(e). Plan the next motion with Fed. R. Civ. P. 12 in mind.

Tool 11: Third-party order intake memo

Purpose: Handle injunctions and subpoenas from cases you are not in. Owner: Counsel. Timing: Same day on receipt.

Received: [date, by whom, how] Court and case no.: [ ] Issued against: [ ] Are we named? [Y/N] Is the party our customer? [Y/N; account IDs] Evidence linking account to the enjoined party: [ ] What does it require of us? [ ] By when? [ ] Our relationship to the enjoined conduct: [none / infrastructure / payment / other] Is the order specific and technically feasible? [ ] Does § 512(j) apply? [ ] Proposed action: [comply / seek clarification / object] Decision by: [name, date] Confirmation sent: [date]

Short reply when the customer is not yours or the order is unclear:

We received the order dated [date] in [case]. [Company] is not a party. Our records do not show an account associated with [name or domain]. [If applicable: We have disabled [specific service] for [account] as of [date].] Please identify the specific account or location at issue. [Company] reserves all rights, including with respect to whether it is bound by the order under Federal Rule of Civil Procedure 65(d)(2).

Drafting notes. Fed. R. Civ. P. 65(d)(2) reaches those "in active concert or participation" with notice. Weibley approved an injunction reaching registrars and hosting providers of infringing domains, and MoonPay recounts a denied contempt motion against a company with no relationship to the pirate. For subscriber data, see Fed. R. Civ. P. 45 and 47 U.S.C. § 551(c)(2)(B). For Doe-case practice, see John Doe Litigation Toolkit: Early Discovery Motions, Platform Subpoenas, and Motions to Quash.

Tool 12: Rightsholder theory selection matrix

Purpose: Choose the theory and the target before you write anything. Owner: Enforcement lead with counsel. Timing: Before any demand or complaint.

Drafting notes. Vicarious allegations failed in Nazemian because they did not show control over third parties or a causal draw. Giganews requires a link to your works. Cox rejected knowledge plus continued service, and Ziff Davis v. OpenAI (S.D.N.Y. Aug. 6, 2026), treated a claim on that theory as gone, while noting inducement and tailoring theories remain. For small claims, consider Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates.

Tool 13: Evidence capture log

Purpose: Authenticatable records of the facts that matter after Cox. Owner: Enforcement team. Timing: Before notice is sent, and then ongoing.

Drafting notes. For an AI product, also record prompt, model version, account, output, and repeat results. Expect the argument, made in the Disney v. MiniMax reply brief, that plaintiff-generated outputs are not third-party infringement, so collect independent third-party uses as well. Do not use a bare IP match to name an individual: Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018). Keep access lawful, since a shortcut can create its own claim; see Computer Access Dispute Toolkit: Access Revocation Letters, Loss Worksheets, and Pleading Outlines.

Tool 14: Takedown notice template

Purpose: A compliant notice that also builds your record. Owner: Enforcement team. Timing: Each notice, after fair use review.

To: [Designated agent, from provider's site and the Copyright Office directory]

I am authorized to act on behalf of [owner], the owner of an exclusive right in the following work(s): [title, registration number if any; or a representative list if multiple works at a single site].

The infringing material is located at: [exact URLs, one per line].

Contact: [name, address, phone, email].

I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. I considered whether the use is a fair use before sending this notice.

The information in this notification is accurate, and under penalty of perjury, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

[Physical or electronic signature]

We also ask that you consider this notice under your repeat infringer policy. Our records show earlier notices concerning this account or seller on: [dates].

Drafting notes. Elements come from 17 U.S.C. § 512(c)(3)(A). Lenz requires considering fair use, and § 512(f) penalizes knowing misrepresentation: Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016). Exact URLs matter because general notices do not create specific knowledge. See Filing a DMCA Takedown Notice: A Practical Checklist.

Tool 15: Rightsholder demand letters

Purpose: Demands that assert theories that survive. Owner: Counsel. Timing: After evidence review. Include only allegations you can support. See Fed. R. Civ. P. 11 if the letter is a prelude to suit.

15A. To a commission marketplace (direct and vicarious).

We represent [owner], which owns the copyright in the works listed in Attachment A, registered as shown there.

[Marketplace] offers and sells goods bearing those works, as shown in Attachment B. [Marketplace] [prints and ships / lists and collects payment for] these goods and retains [percentage] of each sale. Its seller agreement reserves the right to remove listings and terminate sellers, and it reviews listings before publication. Its [date] email campaign featured [work].

On these facts, [Marketplace] is liable for its own reproduction, distribution, and display of the works, and is vicariously liable because it has the right and ability to stop the infringing sales and receives a direct financial benefit from each. See Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304 (2d Cir. 1963). Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. 583 (2026), concerns contributory liability and does not address these claims.

Please (1) remove the listings in Attachment B by [date]; (2) identify sales, revenue, and sellers for each; (3) confirm action under your repeat infringer policy against [accounts]; (4) preserve all related documents; and (5) respond by [date] to discuss resolution.

15B. To a service whose conduct suggests inducement.

We represent [owner]. We are writing about [Service]'s [tutorial, advertisement, or feature] published on [date] at [location], which instructs users to [describe] and uses [work] as its example. Users have responded by [describe evidence], and the resulting copies are at [locations].

A provider induces infringement when it actively encourages infringement through specific acts. Cox Communications, Inc. v. Sony Music Entertainment, 607 U.S. 583 (2026); Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). We ask that [Service] remove the [material] by [date], stop [conduct], preserve all related documents, and contact us by [date].

15C. To an infrastructure provider serving an operator (non-accusatory, with order).

Enclosed is the [injunction] entered on [date] in [case]. It orders [enjoined party] and those in active concert or participation with it who receive actual notice to [required acts]. Our investigation indicates that [domain or account] is operated by the enjoined party and uses your service: [evidence]. Please confirm by [date] that you will [specific act]. We are glad to provide additional information.

Drafting notes. Do not write "you have knowledge and materially contribute." Under Cox that is not a basis for contributory liability, and MoonPay rejected even a more detailed theory about taking steps and then stopping. The letter should not overstate damages or suggest criminal consequences. For tone and structure, see Responding to an Image Copyright Infringement Demand: A Practical Guide, which shows how recipients read these letters. Statutory damage ranges are in 17 U.S.C. § 504(c); fees are in 17 U.S.C. § 505.

Tool 16: Pleading clause bank

Purpose: Starter allegations for a complaint under Fed. R. Civ. P. 8. Owner: Litigation counsel. Timing: Before filing. Replace each bracket with facts, and delete any paragraph you cannot support.

Direct infringement by third parties.

Between [dates], users of [Service], including those identified in Exhibit [ ], reproduced and distributed Plaintiff's works identified in Exhibit [ ] by [method], without authorization, in violation of 17 U.S.C. § 106.

Inducement.

Defendant intended that its service be used to infringe. On [dates], through [speaker], Defendant [published, instructed, marketed]. [Quote.] These communications were directed at [audience]. As a result of these acts, [users] did [conduct], as shown by [evidence].

Defendant's purpose is further shown by [targeting of users of a shuttered service], [absence of any effort to reduce infringement, in context], and [revenue that depends on infringing volume].

Tailoring.

[Function] is separately available from [Service] and is offered at [location]. It has no substantial or commercially significant noninfringing use, because [facts]. It is therefore tailored to infringement.

Vicarious.

Defendant has the legal right to stop the infringing conduct under [agreement § ] and the practical ability to do so because [facts]. Defendant has exercised that ability on [dates].

Defendant receives a direct financial benefit from infringement of Plaintiff's works because [commission on each sale; or customers come to the service for those works, as shown by facts]. Defendant would not have received this benefit but for the infringement.

Knowledge and willfulness.

Defendant knew of the specific infringements identified above, including by reason of [notices, internal reports, statements]. Defendant's infringement was willful.

Defense counterpart: motion outline.

1. The complaint's contributory count rests on knowledge and continued service, which Cox forecloses.
2. The complaint identifies no specific act of encouragement directed at infringement of the works at issue. Ordinary acts incident to distribution, such as support and updates, are not inducement under Grokster.
3. The service is capable of substantial noninfringing uses, so it is not tailored. MoonPay.
4. The vicarious count alleges neither control over third parties nor a causal link to Plaintiff's works. Nazemian; Visa; Giganews; Sony Music.
5. If the direct claim is pleaded, the complaint alleges no volitional conduct by Defendant. Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008); VHT, Inc. v. Zillow Group, Inc., 918 F.3d 723 (9th Cir. 2019).

Drafting notes. Two courts retained a knowledge element after Cox (Nazemian and Weibley), so plead it whichever side of the argument you prefer. Fung sets out inducement's four elements, including causation: Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013). Oppose or prepare for the safe harbor on an evidentiary record, since the provider must raise it and show eligibility, with allocation of the knowledge burden varying by circuit (Capitol Records). Justice Sotomayor's aiding-and-abetting analysis may be pleaded to preserve the argument, but seven Justices rejected a third route, so treat it as preservation only.

This toolkit is general information and is not legal advice for a specific situation.

Related Documents

Related Articles

• Contributory and Vicarious Copyright Liability After Cox v. Sony: Who Pays When Someone Else Infringes: the law behind these forms.
• How to File a DMCA Takedown Notice (And Respond to One): the notice process explained.

Related Guides

• Assessing and Reducing Secondary Copyright Liability: A Practical Guide: how and when to use these papers.
• Responding to an Image Copyright Infringement Demand: A Practical Guide: how demand letters are read and answered.

Related Checklists

• Secondary Copyright Liability Risk Checklist: A Practical Checklist: the desk checklist for the same review.
• Filing a DMCA Takedown Notice: A Practical Checklist: a check on notices before sending.
• Responding to a DMCA Takedown with a Counter-Notice: A Practical Checklist: counter notices for users.

Related Toolkits

• Platform Liability Toolkit: Terms of Service, Notice Procedures, and Litigation Defenses: broader terms and defenses for platforms.
• John Doe Litigation Toolkit: Early Discovery Motions, Platform Subpoenas, and Motions to Quash: identifying anonymous infringers.
• Copyright Claims Board Toolkit: Claim Statements, Opt-Out Decisions, and Settlement Templates: a small-claims route.
• Computer Access Dispute Toolkit: Access Revocation Letters, Loss Worksheets, and Pleading Outlines: when collection or scraping raises access issues (same batch).
• Deposition Conduct Toolkit: Objection Scripts, Record-Making Language, and Rule 30(d) Motions: preparing and defending corporate witnesses (same batch).