Advanced Copyright Issues on the Internet - Fenwick & West LLP

noninfringing uses, or is it merely a gloss on the knowledge prong of contributoryliability?More generally, does the Sony defense apply to both contributory and vicarious liability,or only to contributory liability?If the Sony defense is an independent immunity, what is its relationship to the traditionaldoctrines of secondary liability?With respect to noninfringing uses of a technology, do merely potential uses count, oronly actual uses?Is a cost/benefit analysis required to determine whether the Sony immunity should apply?Is there any difference between “substantial” and “commercially significant”noninfringing uses and which is the operative test for triggering the Sony immunity (theSupreme Court used both phrases in its Sony opinion in immediately contiguoussentences without elucidating whether it meant any difference between the two phrases,and if so, which standard should govern)?Must the distributor of a technology that can be used for infringing uses redesign itsproduct to reduce or eliminate infringing uses in order to avoid secondary liability forthem?In their briefs on appeal, the petitioners urged the following principal positions withrespect to these questions:That a court should examine the “primary” actual uses of a technology, not merely thepotential or theoretical uses, to determine whether its distribution should qualify forimmunity from liability under the Sony doctrine;That, by analogy to the inducement doctrine of patent law, the defendant’s subjectiveintent with respect to how the technology would or should be used should be examined todetermine liability;That a cost/benefit analysis as explicated in the Aimster case should always be requiredto determine whether the Sony immunity is available for a technology;That Sony affords a defense only to contributory liability, and not to vicarious liability;That one should examine, under the financial benefit prong of the vicarious liability test,whether the defendant’s business model is substantially predicated on infringement; andThat the control prong of vicarious liability should be deemed satisfied where thedefendant has failed to exercise control or refused to implement readily availablemechanisms to reduce or prevent infringement.- 316 -