Vicarious liability

[Lettered]

Just wondering if this might apply to some plaintiffs.  From reading I understand that the Vicarious liability occurs when
a) someone has the right and ability to control the infringing activity (but fails to do so) and
b) receives a direct financial benefit from the infringement .

So if some "infringer" (defendant) got the material in question off a free wallpaper site registered with Godaddy (who is apparently good about taking down offending sites when and if contacted), would not the above two tests be satisfied?  Could the defendent successfully sue the plaintiff for Vicarious liability, since he had the right and ability to ask Godaddy to remove the content but did not?

I know this isn't the "normal" application of this theory . . . but is sure seems to fit well to me.

[SoylentGreen]

Quite interesting...

Perhaps, "Secondary liability" might apply here as well?

"Some academics have classified the active inducement adopted in MGM Studios, Inc. v. Grokster, Ltd. as a new type of secondary liability because it is based on express acts of inducement and not on a mere failure to act;[6] furthermore, the specific intent to bring about infringing acts is another important factor in this analysis."

http://en.wikipedia.org/wiki/Contributory_liability

http://en.wikipedia.org/wiki/MGM_Studios,_Inc._v._Grokster,_Ltd.

S.G.