Advanced Copyright Issues on the Internet - Fenwick & West LLP

Can a defendant use evidence of affirmative steps it took to prevent infringement as adefense to inducement liability?Monetary gain from infringing activity does not by itself justify an inference of unlawfulintent. But where there is other strong evidence of unlawful intent, gain that isproportional to infringing activity can be reinforcing evidence of intent. 1466 Similarquestions as those discussed in the preceding bullets arise with respect to the thresholdshowing of intent through other evidence that must be made before evidence of monetarygain from infringing activity is relevant. Also unknown is the substantive standardgoverning what kinds of monetary gain will be cognizable as evidence of intent topromote infringement, and how directly tied to the infringing activity such monetary gainmust be.One can expect that the doctrine of inducement will take on a jurisprudential life of itsown, with attendant uncertainty as to standards and outcomes as further judicial developmenttakes place. The focus on subjective intent and the business model of the defendant will likelymake summary judgment more difficult to obtain in inducement cases than in other secondaryliability cases. Finally, one can expect that the written record relating to development andpromotion of a technology, including purely internal communications, will be crucial to the issueof intent and therefore the focus of discovery and litigation in inducement cases.The Concurring Opinions – Disagreement About the Scope of the Sony Safe Harbor.Despite the urging of the petitioners, the majority opinion found it unnecessary to provide “amore quantified description” of what level of noninfringing uses are required to qualify as“substantial” or “commercially significant” within the meaning of Sony. Six of the justices,however, in two concurring opinions, joined this issue and advocated significantly differentpositions.The first concurring opinion was authored by Justice Ginsburg and joined by ChiefJustice Rehnquist and Justice Kennedy. Justice Ginsburg noted that, in addition to liabilityunder the inducement doctrine articulated by the majority, one could be liable under traditionalcontributory infringement principles for distributing a product that users use to infringecopyrights, if the product is not capable of “substantial” or “commercially significant” uses. 1467Without choosing between, or articulating any difference between, the two phrases “substantial”and “commercially significant,” she elaborated on her understanding of what those phrases inSony mean collectively.Although not stating so explicitly, Justice Ginsburg’s opinion seems based on two keyinterpretations of the Sony safe harbor: (i) that it requires a court to focus more on actual uses ofa product, or those that are concretely likely to develop over time, rather than merely potentialuses, and (ii) that one should balance the relative numbers of infringing and noninfringing uses,and not merely the absolute number of noninfringing uses.1466 Grokster, 125 S. Ct. at 2782.1467 Id. at 2783 (Ginsburg, J., concurring).- 324 -