The US has statutorily codified secondary liability rules for trademarks and patents, but for matters relating to copyright, this has solely been a product of case law developments.
Green Co.[2] (a booth in a department store that sold infringing sound recordings and the store was ultimately held liable), and the so-called "dance hall" cases (the operator of an entertainment establishment was held liable because he had effective control of the premises and obtained a direct financial benefit derived from charging entrance fees to the public).
Examples of the gradual recognition by courts of copyright liability extending to those who contribute to or vicariously profit from the infringing acts of others are Fishel v. Lueckel[4] and Kalem Co. v. Harper Brothers.
Pursuant to this doctrine, courts recognized that employers should be liable for the infringing acts of their employees under traditional master-servant principles.
For example, Deutsch v. Arnold,[9] Fonovisa v. Cherry Auction[10] (extending liability to the operator of a swap meet who repeatedly leased booth space to concessionaires selling infringing tapes).
Green Co.[2] In Shapiro, the court was faced with a copyright infringement suit against the owner of a chain of department stores where a concessionaire was selling counterfeit recordings.
In Sony Corp. of America v. Universal City Studios, Inc.[13] was established a variant on contributory liability claims with respect to technologies.
The question of whether Internet service providers (ISPs) should be held liable for the actions of network users is unresolved.
In order to be eligible for the safe harbor provisions, it is required that the service provider has adopted and reasonably implemented a policy to terminate the accounts of repetitive infringers.
In addition, ISPs must accommodate and not interfere with standard technical measures used by copyright owners to protect their works.
[16] As to trademarks, in the absence of statutory guidance, courts have extended both types of secondary liability (vicarious and contributory) to third parties, including in some circumstances ISPs.
Some cases and commentators have argued for broadening secondary liability through cost–benefit analysis, multi-factor balancing tests, or simply basing it on technical designs or business models.