- That a court should examine the “primary” actual uses of a technology, not merely the
potential or theoretical uses, to determine whether its distribution should qualify for
immunity from liability under the Sony doctrine; - That, by analogy to the inducement doctrine of patent law, the defendant’s subjective
intent with respect to how the technology would or should be used should be examined to
determine liability; - That a cost/benefit analysis as explicated in the Aimster case should always be required
to determine whether the Sony immunity is available for a technology; - That Sony affords a defense only to contributory liability, and not to vicarious liability;
- That one should examine, under the financial benefit prong of the vicarious liability test,
whether the defendant’s business model is substantially predicated on infringement; and - That the control prong of vicarious liability should be deemed satisfied where the
defendant has failed to exercise control or refused to implement readily available
mechanisms to reduce or prevent infringement.
As explicated below, the Supreme Court did not resolve most of the questions identified
above, nor did it directly accept any of the positions advocated by the petitioners, at least in the
strong form in which they were urged on the Court. Instead, the Court adjudicated the case on its
newly introduced doctrine of copyright inducement liability. The Court articulated a standard for
inducement liability, noted the kinds of behavior that might give rise to such liability, and
remanded the case for further proceedings under the new standard. In the process, the Court’s
opinion not only left open most of the questions noted above, but gave rise to a number of new
questions about the scope of inducement liability that will have to be resolved by the lower
courts in future decisions in which inducement liability is invoked by the plaintiff.
The New Doctrine of Inducement Liability. Justice Souter, writing a 9-0 opinion for a
unanimous Court, stated the principal question to be decided as “under what circumstances the
distributor of a product capable of both lawful and unlawful use is liable for acts of copyright
infringement by third parties using the product.”^1883 The Court answered this question by
formally introducing inducement liability for the first time into U.S. copyright law. To do so, the
Court analogized to patent law, as it had in the Sony case:
For the same reasons that Sony took the staple-article doctrine of patent law as a
model for its copyright safe-harbor rule, the inducement rule, too, is a sensible
one for copyright. We adopt it here, holding that one who distributes a device
with the object of promoting its use to infringe copyright, as shown by clear(^1883) Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 918-19 (2005).