Despite the ambiguity in the opinion, it seems to be the better view that the inducement
doctrine should be seen as a separate basis for secondary liability distinct from that of the
traditional contributory and vicarious liability doctrines. In addition to the fact that Justice
Breyer reads it that way in his concurrence, Justice Souter notes that Sony, although it forbade
imputing culpable intent as a matter of law from the characteristics or uses of a distributed
product, was never meant to foreclose rules of “fault-based liability derived from the common
law.”^1891 The traditional doctrine of contributory infringement, as articulated by the courts
before the Grokster opinion, was not grounded on a concept of “fault,” thereby suggesting that
the inducement doctrine and its associated notion of “fault” is something new. That notion of
“fault” is to be found under the inducement doctrine in proof of intent to promote unlawful
behavior, coupled with concrete steps taken to act out that intent.^1892 In addition, the kinds of
evidence the Court notes as relevant to intent and inducement liability is different from the kinds
of evidence courts had usually considered for contributory liability before the Grokster
decision.^1893
The Required Threshold of Showing of Unlawful Intent. From the majority opinion, it
appears that the threshold of showing required to prove an unlawful intent to induce infringement
will be rather high, so as to “leave[] breathing room for innovation and a vigorous commerce”
founded on new technological products:^1894
[M]ere knowledge of infringing potential or of actual infringing uses would not be
enough here to subject a distributor to liability. Nor would ordinary acts incident
to product distribution, such as offering customers technical support or product
updates, support liability in themselves. The inducement rule, instead, premises
liability on purposeful, culpable expression and conduct, and thus does nothing to
compromise legitimate commerce or discourage innovation having a lawful
promise.^1895(^1891) Id. at 934-35.
(^1892) The Court noted that the staple article of commerce doctrine in general, and the Sony case in particular,
“absolves the equivocal conduct of selling an item with substantial lawful as well as unlawful uses, and limits
liability to instances of more acute fault than the mere understanding that some of one’s products will be
misused.” Id. at 932-33.
(^1893) The doctrines of contributory and inducement liability are clearly separate doctrines in the patent law, for they
are embodied in separate statutory sections. 35 U.S.C. § 271(b) sets forth inducement liability: “Whoever
actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C. § 271(c) sets forth
contributory liability: “Whoever offers to sell or sells within the United States or imports into the United States
a component of a patented machine, manufacture, combination or composition, or a material or apparatus for
use in practicing a patented process, constituting a material part of the invention, knowing the same to be
especially made or especially adapted for use in an infringement of such patent, and not a staple article or
commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.”
Treating inducement and contributory liability as separate doctrines in the copyright law would therefore afford
a natural parallel to the patent law, to which the Court analogized in both Sony and Grokster.
(^1894) Grokster, 545 U.S. at 933.
(^1895) Id. at 937 (emphasis added).