Thursday, May 7, 2009

Inducement of infringement: Techdirt vs. 'the law'

[T]he Supreme Court['s Grokster] ruling said that a site could be found liable if it induced infringement by encouraging such [infringing] uses. This was already quite surprising to many because the idea of an "inducement" standard for copyright is not found in the law...
(emphasis added).

"The law" (decades pre-Grokster):
[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.
Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971) (emphasis added; cited in Grokster); see also Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), etc., etc., etc....


  1. I see. Can you point where in the copyright statute that language appears?

  2. No one ever said the doctrine of inducement is explicit in the statute. But if your point is that a copyright doctrine does not count as "the law" unless it is set forth in the statute, then that is just frivolous.

    A multitude of important copyright doctrines don't appear in the Copyright Act itself, but, rather, are judge-created. To name just a few: contributory infringement, vicarious infringement, "transformativeness" in fair use, scenes a faire, copyright misuse, laches, merger, "substantial noninfringing uses," the satire/parody distinction, etc. (Fair use wasn't in the statute until the 1976 Act, but it's been a part of US copyright law since Folsom v. Marsh in 1841.)

    Copyright law isn't any different from most areas of federal law, which are partly governed by statute, and partly by judge-made law. Antitrust, for example, consists of only a few sparse statutes, while most important doctrines exist only in the casebooks.

    No one seriously suggests that the only federal "law" that is legitimate or binding is that set forth explicitly in the US Code.

  3. I thought you were against "activist" judges...

  4. I don't believe I've ever used that term, which I don't find to be particularly helpful. And it really has no application here; it's a term generally applied to constitutional (as opposed to statutory) interpretation.

    I know of no one, at any point on the political spectrum (or indeed the copyright spectrum), who believes that judges are strictly limited by the language of the Copyright Act in adjudicating copyright cases. Copyright law has long been marked by an interplay between the statute and the case law. And when Congress believes that the courts have gotten it wrong, they are free to step in and fix the mistakes by passing a new law.

  5. Curious that Masnick asks where within the statutes "inducement" appears given his wholehearted support for "Betamax" wherein the "staple article of commerce" statutory provision in patent law was "borrowed" and engrafted by the SCOTUS into its interpretation of Title 17.


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