Draft:Original research/Attribution and copyright/Liability

Attribution
"For purposes of Rule 10b-5, the maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it. Without control, a person or entity can merely suggest what to say, not "make" a statement in its own right. One who prepares or publishes a statement on behalf of another is not its maker. And in the ordinary case, attribution within a statement or implicit from surrounding circumstances is strong evidence that a statement was made by—and only by—the party to whom it is attributed. This rule might best be exemplified by the relationship between a speechwriter and a speaker. Even when a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit—or blame—for what is ultimately said." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"This rule follows from Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), in which we held that Rule 10b-5's private right of action does not include suits against aiders and abettors. See id., at 180, 114 S.Ct. 1439. Such suits—against entities that contribute "substantial assistance" to the making of a statement but do not actually make it—may be brought by the SEC, see 15 U.S.C.A. § 78t(e), but not by private parties. A broader reading of "make," including persons or entities without ultimate control over the content of a statement, would substantially undermine Central Bank. If persons or entities without control over the content of a statement could be considered primary violators who "made" the statement, then aiders and abettors would be almost nonexistent.[6]" Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"This interpretation is further supported by our recent decision in Stoneridge. There, investors sued "entities who, acting both as customers and suppliers, agreed to arrangements that allowed the investors' company to mislead its auditor and issue a misleading financial statement." 552 U.S., at 152-153, 128 S.Ct. 761. We held that dismissal of the complaint was proper because the public could not have relied on the entities' undisclosed deceptive acts. Id., at 166-167, 128 S.Ct. 761. Significantly, in reaching that conclusion we emphasized that "nothing [the defendants] did made it necessary or inevitable for [the company] to record the transactions as it did." Id., at 161, 128 S.Ct. 761.[7] This emphasis suggests the rule we adopt today: that the maker of a statement is the entity with authority over the content of the statement and whether and how to communicate it. Without such authority, it is not "necessary or inevitable" that any falsehood will be contained in the statement." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"Our holding also accords with the narrow scope that we must give the implied private right of action. Id., at 167, 128 S.Ct. 761. Although the existence of the private right is now settled, we will not expand liability beyond the person or entity that ultimately has authority over a false statement." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"The Government contends that "make" should be defined as "create." Brief for United States as Amicus Curiae 14-15 (citing Webster's New International Dictionary 1485 (2d ed.1958) (defining "make" as "[t]o cause to exist, appear, or occur")). This definition, although perhaps appropriate when "make" is directed at an object unassociated with a verb (e.g., "to make a chair"), fails to capture its meaning when directed at an object expressing the action of a verb." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"Adopting the Government's definition of "make" would also lead to results inconsistent with our precedent. The Government's definition would permit private plaintiffs to sue a person who "provides the false or misleading information that another person then puts into the statement." Brief for United States as Amicus Curiae 13.[8] But in Stoneridge, we rejected a private Rule 10b-5 suit against companies involved in deceptive transactions, even when information about those transactions was later incorporated into false public statements. 552 U.S., at 161, 128 S.Ct. 761. We see no reason to treat participating in the drafting of a false statement differently from engaging in deceptive transactions, when each is merely an undisclosed act preceding the decision of an independent entity to make a public statement." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"For its part, First Derivative suggests that the "well-recognized and uniquely close relationship between a mutual fund and its investment adviser" should inform our decision. Brief for Respondent 21. It suggests that an investment adviser should generally be understood to be the "maker" of statements by its client mutual fund, like a playwright whose lines are delivered by an actor. We decline this invitation to disregard the corporate form. Although First Derivative and its amici persuasively argue that investment advisers exercise significant influence over their client funds, see Jones v. Harris Associates L. P., 559 U.S. ___, ___, 130 S.Ct. 1418, 1422-1423, 176 L.Ed.2d 265 (2010), it is undisputed that the corporate formalities were observed here. JCM and Janus Investment Fund remain legally separate entities, and Janus Investment Fund's board of trustees was more independent than the statute requires. 15 U.S.C. § 80a-10.[9] Any reapportionment of liability in the securities industry in light of the close relationship between investment advisers and mutual funds is properly the responsibility of Congress and not the courts. Moreover, just as with the Government's theory, First Derivative's rule would create the broad liability that we rejected in Stoneridge." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

"Congress also has established liability in § 20(a) for "[e]very person who, directly or indirectly, controls any person liable" for violations of the securities laws. 15 U.S.C.A. § 78t(a). First Derivative's theory of liability based on a relationship of influence resembles the liability imposed by Congress for control. To adopt First Derivative's theory would read into Rule 10b-5 a theory of liability similar to—but broader in application than, see post, at 2310 — what Congress has already created expressly elsewhere.[10] We decline to do so." Janus Capital Group v. First Derivative Traders, 131 S. Ct. 2296 - Supreme Court 2011.

Vicarious liability
Vicarious "liability [is] applicable to copyright violations. Under the test developed by the Second Circuit, a defendant is vicariously liable for copyright infringement if it has "the right and ability to supervise the infringing activity and also has a direct financial interest in such activities." Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (hereinafter CAMI); F.E.L. Publications, Ltd. v. National Conf. of Catholic Bishops, 466 F.Supp. 1034, 1040 (N.D.Ill.1978); see also Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354, 355 (7th Cir.1929) (owner of dance hall liable for copyright violations by band hired to entertain paying customers); Famous Music Corp. v. Bay State Harness Horse Racing & Breeding Ass'n, 554 F.2d 1213, 1215 (1st Cir.1977) (owner of racetrack liable for copyright violations by company hired to supply music over public address system). The purpose of the doctrine is to prevent an entity that profits from infringement from hiding behind undercapitalized "dummy" operations when the copyright owner eventually sues. Shapiro, Bernstein, 316 F.2d at 309." Hard Rock Cafe Licensing v. Concession Services, 955 F. 2d 1143 - Court of Appeals, 7th Circuit 1992.