2. Investors' & Lenders' Material Contribution
As material contribution has been found in numerous cases beyond situations in which the alleged third-party infringer provided the site or facilities for the infringement, n217 the question of whether funding alone is sufficient is legitimate. In a recent case, it was held to be a triable issue of material fact for trial whether a third party's assistance to an alleged direct infringer in the handling of the alleged direct infringer's own money was a material contribution. n218 It is thus not hard to believe that a court will hold the same way when money is given to the alleged direct infringer, as was true in the Napster and Deutsche Bank cases detailed in Part III of this paper, which were not resolved on summary judgment. Given the cases [*116] that found material contribution when there was a provision of the site or facilities and supports services such as utilities, parking, advertising, and/or plumbing, it seems to be a good policy to hold an investor or lender just as liable. An investor or lender is just one step removed from actually making such provisions. It is her money that allows the alleged direct infringer to purchase, rent, or maintain such site or facilities and supports services. Even if such money is not used for those purposes and is used for something else, the alleged direct infringer, after the funding, can re-allocate its own money to those ends. Thus, it can be said that funding has "freed up" the alleged direct infringer's resources so that it can self-finance the greasing of the infringing wheel. While it might seem more removed and thus unfair, remember that the third party had the knowledge, actual or constructive, of infringement and proceeded anyway.
2. Investors' & Lenders' Material Contribution As material contribution has been found in numerous cases beyond situations in which the alleged third-party infringer provided the site or facilities for the infringement, n217 the question of whether funding alone is sufficient is legitimate. In a recent case, it was held to be a triable issue of material fact for trial whether a third party's assistance to an alleged direct infringer in the handling of the alleged direct infringer's own money was a material contribution. n218 It is thus not hard to believe that a court will hold the same way when money is given to the alleged direct infringer, as was true in the Napster and Deutsche Bank cases detailed in Part III of this paper, which were not resolved on summary judgment. Given the cases [*116] that found material contribution when there was a provision of the site or facilities and supports services such as utilities, parking, advertising, and/or plumbing, it seems to be a good policy to hold an investor or lender just as liable. An investor or lender is just one step removed from actually making such provisions. It is her money that allows the alleged direct infringer to purchase, rent, or maintain such site or facilities and supports services. Even if such money is not used for those purposes and is used for something else, the alleged direct infringer, after the funding, can re-allocate its own money to those ends. Thus, it can be said that funding has "freed up" the alleged direct infringer's resources so that it can self-finance the greasing of the infringing wheel. While it might seem more removed and thus unfair, remember that the third party had the knowledge, actual or constructive, of infringement and proceeded anyway.
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