Whether the profit requirement of vicarious copyright infringement permits liability where the defendant expects commercial gain from the enterprise in which infringement occurs or only where the defendant expects commercial gain from the act of infringement itself

QUESTION PRESENTED The Copyright Act grants the holder of a copyright the exclusive right to reproduce, publicly perform, and publicly distribute the underlying creative work, subject to some exceptions. See 17 U.S.C. § 106. In addition to codifying liability for direct infringement, the Act incorporates certain “doctrines of secondary liability” drawn from “common law principles,” including vicarious liability. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Lid., 545 U.S. 918, 930-931 (2005). A defendant “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Jd. at 930. The circuits are split, however, on how a defendant must benefit from direct infringement in order to be vicariously liable. The question presented is: Whether the profit requirement of vicarious copyright infringement permits liability where the defendant expects commercial gain from the enterprise in which infringement occurs (as the First, Second, Third, Seventh, and Ninth Circuits have held), or whether the profit requirement of vicarious copyright infringement permits liability only where the defendant expects commercial gain from the act of infringement itself (as the Fourth Circuit has held). (i)