CMI, because the court found the plaintiffs had failed to prove that Bitstream’s licensees had
used the CSR with any of the plaintiff’s fonts, they had therefore failed to show that Bitstream
intentionally removed CMI, or distributed copies of works knowing that CMI had been removed,
with knowledge or having reasonable grounds to know that it would induce, enable, facilitate or
conceal infringement, as required by Sections 1202(b)(1) and 1201(b)(3) of the DMCA.^1356
The court also found no liability for contributory infringement, again because the
plaintiffs failed to prove any direct infringement by Bitstream’s licensees – in particular, that a
Bitstream licensee had ever used the CSR to copy the plaintiffs’ fonts.^1357 The court also found
the plaintiffs did not present any evidence that Bitstream ever knew that its licensees were using
TrueDoc’s CSR with the plaintiffs’ fonts.^1358 Citing the Supreme Court’s Grokster case,
however, the court noted that “a court may impute culpable intent as a matter of law from the
characteristics or uses of an accused product.”^1359 In determining whether the alleged
contributory infringer acted with such culpable intent, the court, apparently not believing that the
Grokster case repudiated any of the Aimster case’s holding or rationale, noted that the Seventh
Circuit considers the following factors under the Aimster case: “(1) the respective magnitudes of
infringing and noninfringing uses; (2) whether the defendant encouraged the infringing uses; and
(3) efforts made by the defendant to eliminate or reduce infringing uses.”^1360
The court found that the plaintiffs had not satisfied any of the factors. The plaintiffs had
not submitted any evidence to tie the ratio of Bitstream fonts to non-Bitstream fonts available in
the marketplace to the proportion of such fonts that Bitstream’s customers actually used with the
CSR. Nor had they presented any evidence that Bitstream knew of or encouraged the allegedly
infringing uses of TrueDoc. With respect to the third factor, the court noted that Bitstream had
made at least some efforts to reduce the risk of infringement of third parties’ intellectual property
through the use of TrueDoc, in the form of a “doc-lock” feature with the capability of preventing
a third party from using a PFR that it had received for any purpose other than viewing the
document with which the PFR came. Bitstream also engineered TrueDoc to honor the
embedding flags that font foundries include in their font data, which prohibit a third party from
embedding that font into another technology.^1361 Finally, the court found no liability under the
inducement doctrine of the Grokster case, because there was no evidence that Bitstream had
knowledge of its customers’ alleged infringements, much less that it acted with the “purposeful,
culpable expression and conduct” required under the Grokster decision.^1362
e. Keogh v. Big Lots Corp.(^1356) Id. at 893.
(^1357) Id. at 884.
(^1358) Id. at 887.
(^1359) Id.
(^1360) Id.
(^1361) Id. at 887-88.
(^1362) Id. at 888-89.