Advanced Copyright Issues on the Internet - Fenwick & West LLP

expression or other affirmative steps taken to foster infringement,” 1456 “purposeful,culpable expression and conduct,” 1457 and “a patently illegal objective.” 1458 The purposeof this high standard is so as not to “compromise legitimate commerce or discourageinnovation having a lawful purpose.” 1459Inducement liability cannot be based on the mere “characteristics” of a product, includingits functional capability for use for infringing purposes, or on the mere “knowledge that itmay be put to infringing uses.” 1460 Instead, for inducement liability, “statements oractions directed to promoting infringement” through use of the technology arerequired. 1461 Thus, the Court’s rule for inducement liability focuses on subjectivepurpose of the defendant rather than the technology itself. Two vendors of the sametechnology could therefore have different liability depending upon their actions and theintent behind them.Even where a distributed technology is used by some to commit infringement, the vendorof that technology can engage in ordinary acts incident to product distribution, such asoffering customers technical support or product updates, and those acts, in themselves,will not establish inducement liability. 1462The basic immunity of the Sony case remains intact. Sony continues to “bar[] secondaryliability based on presuming or imputing intent to cause infringement solely from thedesign or distribution of a product capable of substantial lawful use, which the distributorknows is in fact used for infringement.” 1463In judging the subjective intent of a defendant accused of inducing infringement, a courtmay look at evidence of internal communications (whether or not released to the publicor potential users), the business model of the defendant and whether it is predicated oninfringement, product naming, advertising and press kits, customer support activities inresponse to specific questions about how to use the technology for infringing acts,targeting of users who are known to be committing or likely to commit infringing actsusing the technology in question, whether the defendant has taken steps to reduce oreliminate use of its technology for infringement, and whether the defendant’s gain isproportional to infringing volume.1456 Id. at 2780.1457 Id.1458 Id. at 2782.1459 Id. at 2780.1460 Id. at 2779.1461 Id.1462 Id. at 2780.1463 Id. at 2778.- 322 -