Brett Kavanaugh Questions Sony Attorney on Copyright Law and Intent

Copyright Case Law and Intent

• 🎯 Justice Kavanaugh questioned the formulation of "intent" in copyright cases, noting its absence in established precedents like Kalum, Groster, Sony, and Henry.
• 💡 He suggested that existing case law implies a more affirmative standard, such as advertisement, promotion, or instruction, to establish purpose.

Material Contribution in Copyright Liability

• 🔑 The concept of "material contribution" has been a critical aspect of copyright secondary liability since the Harper case in 1886.
• ⚠️ While Groster did not focus on material contribution due to a lack of knowledge of specific infringing works, Sony does address it, particularly concerning ongoing relationships versus one-and-done sales.
• ⚖️ In situations with no ongoing relationship, the focus shifts to the patent law context of a "staple article of commerce" where knowledge is unascertainable.

Inducement and Substantially Certain Infringement

• 🔍 Justice Stevens, in Sony's footnote 19, referenced trademark law and cited Inwood Labs, which clearly establishes the standard as inducement or material contribution.
• 🤝 This standard defines material contribution as providing the means of infringement to a customer known to be intending to infringe.
• ✅ The attorney emphasized the standard of "substantially certain" on top of this knowledge.