Focusing on Inducement

So my prior blind post on the AP story was right: the opinion of the Court supplements Sony’s substantial noninfringing use test by importing patent law’s active inducement test. That allows the opinion to leave Sony alone and yet creates a new set of tools for copyright owners to pursue the Groksters of the world.

The analysis of the Court’s result should focus on the new inducement test and then the interesting by-play over Sony that takes place in the concurring opinions by Justice Ginsburg, joined by the Chief Justice and Justice Kennedy, and Justice Breyer, joined by Justice Stevens and Justice O’Connor. This post deals with the new inducement test.

As Larry notes in his post, the key move for the Court is to treat Sony as simply addressing one possible theory of liability while leaving other channels to liability intact. To quote the Court (pages 16-17):

Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM’s inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur.

(The Ginsburg/Breyer concurrences address that issue.)

The Court continues (page 17):

But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived the common law.

The Court then goes on to embrace patent law’s approach to inducement (page 19):

We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

Where does Sony stand after that? Next post.