Clarence Thomas Questions Copyright Law and Secondary Liability in Cox v. Sony

Secondary Liability in Copyright Law

• ⚖️ U.S. Deputy Solicitor General Malcolm Stewart discussed the court's holding in Groster, which established liability for distributing a device to promote copyright infringement.
• 💡 The court emphasized that aiding and abetting liability requires participation in the primary violation, aiming to bring about and succeed in the infringement.

Borrowing from Patent Law and Common Law

• ❓ Justice Clarence Thomas questioned how much the court should borrow from patent law or common law when developing secondary liability jurisprudence in copyright.
• 🏛️ Stewart suggested looking to general principles of aiding and abetting law, which are common law principles.
• 📜 Alternatively, he proposed examining Congress's codification of secondary liability in the patent act, noting that the patent act does not provide for secondary liability in similar circumstances.

Patent Act Provisions for Secondary Liability

• 🔌 The patent act, specifically 35 USC 271B, addresses liability for actively inducing infringement.
• 🛠️ Section 271C addresses liability for selling a device specially suited for patent infringement with knowledge of its character.
• 🚫 Stewart pointed out that the patent act does not hold liable someone who sells a multi-use device to a person known to use it for infringement.
• ⚖️ He concluded that adopting a special rule for copyright law that ignores the established patent law rule would be unusual.