“This is a completely new concept”
In a Bloomberg Opinion article, Heyman said cox The decision, written by Thomas, “was the right result on the facts” but “takes a ‘we said what we said’ approach to justice rather than fully explaining any arguments”. He wrote, “Ideally, the appellate opinion should not only state a rule but also explain its underlying logic, anticipate its implications, and provide guidance on its application by lower courts.” “A rule may be stated only in theory, but its simplicity may belie the complexity of its operation in practice.”
Despite that concern, Heyman and Boyden agree that cox This decision is important because of its impact on other circuits gershwin The decision on which lower courts had previously relied. As Boyden told Ars, the Supreme Court “clearly sidelined the customary test gershwin The 1971 case.”
The previous test was “knowledge plus material contribution”, he said. “And for a long time, it has been thought that Internet service providers of any kind can be liable for copyright infringement by users on their systems if they are aware of that infringement and are providing facilities that allow it to occur.”
The Supreme Court’s decision is clear that inducement and tailoring “are the only two theories available to service providers for contributory infringement,” but “all copyrights are vague to some extent,” Boyden said. He said it is not entirely clear what intent is required to show inducement or what constitutes solicitation.
“I mean, it’s a whole new concept,” Boyden said. Some plaintiffs may try to “pitch a theory” about the circumstances under which continuing to serve infringing customers could count as contributory infringement under the new standard, he said.
A plaintiff “must show that the defendants have done something affirmatively to better suit the needs of infringers,” Boyden said. It seems clear that selling the same service to every potential customer isn’t tailoring, but “we don’t have any additional guidance about what might be involved in tailoring your service,” he said.
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