To what extent and under what circumstances will a lender be held accountable for the infringement of a copyright by its debtor? This question may now come before the United States District Court for the District of Hawaii. So far, existing case law offers very little concrete guidance. But a recent proliferation of secondary liability theories for copyright infringement makes one thing clear: lenders should take precautions in lending to parties with business models that depend upon technology that may be the subject of a copyright dispute.
Berry v. Deutsche Bank
Wayne Berry, a software developer, filed suit against Deutsche Bank Trust Company Americas and JPMorgan Chase Bank (together, the "Lenders") for vicarious and/or contributory copyright infringement of his copyright in the software program Freight Control System 1993 or "FCS 1993." See Berry v. Deutsche Bank Trust Co. Americas., CV07-00172 (D. Haw., complaint filed March 29, 2007). Berry alleged that FCS 1993, which
