appears predisposed to favor the copyright holders rights, whereas Justice Breyer’s
concurrence is predisposed to favor technological innovation.- Whether the Sony immunity applies to both contributory and vicarious liability, or only
to contributory liability. Justice Souter’s majority opinion does not address vicarious
liability at all: “Because we resolve the case based on an inducement theory, there is no
need to analyze separately MGM’s vicarious liability theory.”^1944 - What level of active encouragement will be sufficient to find inducement in less
egregious cases. Related questions include (i) the meaning of “clear expression” of intent
and “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 affirmative
steps taken to foster infringement.” - At what point in time the defendant’s “intent” is to be measured – at the time of original
design 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 to
infringement, or intend to cause infringement itself. For example, what happens if the
defendant had a good faith belief at the time of product design or promotion that the
intended acts were fair use, but they are later judged infringing? Must the belief be
objectively reasonable? - Under what circumstances failure to design or redesign a product to avoid or reduce
infringement can be used as proof of intent to induce infringement, and when a vendor of
technology has an obligation to redesign in order to avoid inducement liability. As
analyzed above, there are a host of questions left unanswered by the Court’s opinion with
respect to the issue of design to avoid infringement. - Whether the Seventh Circuit’s approach to the Sony safe harbor in the Aimster case is
correct or not. None of the three opinions in Grokster expressly address whether the
Aimster approach erred in various aspects. The majority opinion cites the Aimster case
only for the factual proposition that it may be impossible to enforce rights in a protected
work effectively against all direct infringers, making the only practical alternative going
against the distributor of the copying device for secondary liability.^1945 Justice
Ginsburg’s concurring opinion merely notes the conflict between the Aimster and
Napster decisions and states only that all members of the Court agree that the Ninth
Circuit misapplied Sony, at least to the extent it read that decision to limit secondary
liability to a “hardly-ever category.”^1946 Justice Breyer’s concurring opinion cites
Aimster only for the proposition that there is but a single appellate decision to date
(^1944) Id. at 931 n.9 (Souter, J.).
(^1945) Id. at 929-30.
(^1946) Id. at 944 n.1 (Ginsburg, J., concurring).