Advanced Copyright Issues on the Internet - Fenwick & West LLP

such a balance, whereas Justice Breyer’s concurrence does not. The majority opiniondoes not reach the issue.Whether Sony requires some minimal threshold of noninfringing uses, and if so, whatthat threshold is. The wide split in conclusions from the record in the Grokster caseexpressed in the concurring opinions illustrate how unsettled this question was among themembers of the Court that decided Grokster. Moreover, three justices did not express anopinion of any kind on the issue.What “capable of” means in the Sony test. Both concurrences seem to reject a meaningof purely theoretical uses. However, Justice Ginsburg’s concurrence focuses much moreon the actual uses of a product, whereas Justice Breyer’s concurrence evidences more ofa willingness to look to future legitimate uses that might be precluded by a strictinterpretation of the Sony safe harbor. Stated differently, Justice Ginsburg’s concurrenceappears predisposed to favor the copyright holders rights, whereas Justice Breyer’sconcurrence is predisposed to favor technological innovation.Whether the Sony immunity applies to both contributory and vicarious liability, or onlyto contributory liability. Justice Souter’s majority opinion does not address vicariousliability at all: “Because we resolve the case based on an inducement theory, there is noneed to analyze separately MGM’s vicarious liability theory.” 1486What level of active encouragement will be sufficient to find inducement in lessegregious cases. Related questions include (i) the meaning of “clear expression” of intentand “purposeful, culpable expression and conduct,” and (ii) if there is little “expressive”evidence of purpose, what kinds of acts or omissions will qualify as “other affirmativesteps taken to foster infringement.”At what point in time the defendant’s “intent” is to be measured – at the time of originaldesign of the technology, at the time of distribution, at some other time?Whether the defendant must merely intend to induce the acts that give rise toinfringement, or intend to cause infringement itself. For example, what happens if thedefendant had a good faith belief at the time of product design or promotion that theintended acts were fair use, but they are later judged infringing? Must the belief beobjectively reasonable?Under what circumstances failure to design or redesign a product to avoid or reduceinfringement can be used as proof of intent to induce infringement, and when a vendor oftechnology has an obligation to redesign in order to avoid inducement liability. Asanalyzed above, there are a host of questions left unanswered by the Court’s opinion withrespect to the issue of design to avoid infringement.1486 Id. at 2776 n.9 (Souter, J.).- 328 -