Was Andy Warhol violating copyright in his Micky Mouse (or other such) images, and are the art collectors who are engaged in commercial exchange of his work accomplices in this violation?

I am fearful that even this lovely pull-back from modern standards will not be enough. Note further that the question of fuzzy and broadly stated standards has a deep and practical impact — in particular, they preclude summary judgment for either plaintiff or defendant. In the case of civil actions extending copyright infringement to technology, that uncertainty favors the content owners immensely. Potential damages are estimable by the number of extant works times $750, or billiions, and a jury can do anything. If there won’t be summary judgment for defendants in most cases, then the chill is present, even for defendants who are supposed to win: nobody will invest in or risk the technologies.

Finally, it is impossible. The language, as I read it, essentially pulls back vicarious infringement all the way back to its roots in respondeat superior. While I think this is a good thing, and criticized the expansion in my written testimony on the IICA, extending control-relationship-based liablity to a negligent-failure-to-exercise-capacity-to-control form, you must understand that such legislation is impossible. There are two classes of cases that no legislature will pull back from: (a) the Dance-hall cases, where the club, not the band is held liable, despite absence of an agency or employment relationship; and (b) the record chain cases, where the owner of the chain, is held liable for bootleg distribution by its contracting retail stores, notwithstanding the absence of agency.

We seriously considered pulling back on vicarious that far in the IEEE proposal (it was in until the penultimate draft!), but rejected it at end for the reason that a proposal that reverses the Dance Hall and Record Chain cases would be rejected out of hand as unserious.

Personally, I think it is dangerous to use any new words in redefining secondary liability. While I, personally, would get rich from the process of litigating these questions, I much prefer a more rationalized basis for knowing what the legislation actually means. At the end of the day, I ask whether a lawyer could write an unqualified opinion that his client will be safe from claims of secondary liability, given only the technical details of the product, so long as the client follows certain advices concerning marketing conduct.

This is why the IEEE substitute undertook, so far as possible, to use existing language from cases and statutes as a byword. While the law of patent inducement is far from crystal, it has proved far less uncertain than the status quo in vicarious and contributory liability, and would be far, far, clearer than the language in S.2560.

The last i heard on that case the judge allowed it to go forward, but urgency is sadly lacking, as there appears to be no news of anything on the docket in the case for months.