expression or other affirmative steps taken to foster infringement, is liable for the
resulting acts of infringement by third parties.^1884This test of inducement liability examines the intent or objective of the distributor of a
product or technology that can be used to infringe. Where the distributor has shown “by clear
expression or other affirmative steps” that it has an intent or object to foster infringement, there
can be liability for inducement. The Court’s rule grew out of its exegesis of Sony as a case about
“imputed intent.”^1885 Specifically, Justice Souter noted that “Sony barred secondary liability
based on presuming or imputing intent to cause infringement solely from the design or
distribution of a product capable of substantial lawful use, which the distributor knows is in fact
used for infringement.”^1886 Note that Justice Souter used a new phrase (“capable of substantial
lawful use”) that is different from each of the alternative two phrases used in Sony – “capable of
substantial noninfringing uses” and “capable of commercially significant noninfringing uses” –
against which a technology or product must be measured for the Sony immunity to apply. He
did not state, however, whether the new phrase was intended to have a different meaning from
either of the phrases used in Sony, or to subsume those two phrases into a single moniker.
It is unclear from the majority opinion whether the inducement doctrine is meant to form
a third basis for secondary liability, in addition to the traditional contributory and vicarious
liability doctrines, or whether the Court intended it to be merely one species of contributory
liability. At one point in the opinion, Justice Souter stated, “One infringes contributorily by
intentionally inducing or encouraging direct infringement ... and infringes vicariously by
profiting from direct infringement while declining to exercise a right to stop or limit it.”^1887 This
sentence suggests that intentional inducement is but one species of contributory infringement, as
distinct from vicarious liability. And Justice Souter’s interpretation of Sony as a case “about ...
imputed intent”^1888 reinforces this notion, since intent is the primary issue for copyright
inducement liability as set forth by the Court. Yet Justice Breyer’s concurring opinion implies
that the inducement doctrine is a new basis for liability distinct from contributory and vicarious
liability, for he notes that the Court’s opinion should further deter infringement “by adding a
weapon to the copyright holder’s legal arsenal.”^1889 Justice Ginsburg’s concurring opinion
contains a similar inference in her statement that on the record before the Court, Grokster and
StreamCast could be liable “not only for actively inducing copyright infringement,” but
“alternatively” for contributory infringement.^1890
(^1884) Id. at 936-37.
(^1885) Id. at 934.
(^1886) Id. at 933. Justice Souter noted that inferred intent, based solely on the distribution of a product with
knowledge that it would be used for some infringing purposes, was the only intent at issue in Sony because the
record contained “no evidence of stated or indicated intent to promote infringing uses” on the part of Sony. Id.
at 931.
(^1887) Id. at 930.
(^1888) Id. at 934.
(^1889) Id. at 957.
(^1890) Id. at 942.