The Supreme Court of the United States has established a new theory for holding infringers liable for copyright infringement, based upon a line of cases concerning patents. It relies upon acts of inducement of infringement by others.

The case, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., decided June 17, 2005 by a unanimous court, involves peer to peer music and video file sharing, but is applicable as well to photography with the emergence of digital peer to peer photo-swapping services.

  The question raised before the Supreme Court was under what circumstances is the distributor of a product, which is capable of both lawful and unlawful use, liable for acts of copyright infringement by third parties using the product. In Grokster, the products were free software that allowed computer users to share electronic files through peer-to-peer networks (where users' computers communicated directly with each other and not through central servers).

Because there was no central computer server to mediate the exchange of information or files among users, the distributors did not directly infringe the copyrights at issue, nor did they infringe under theories of either contributory or vicarious infringement.

The Supreme Court, in reversing decisions of both the District Court, and the intermediate level Circuit Court of Appeals, found a solution to the huge number of infringing downloads occurring every day, by establishing indirect liability under this theory of inducing copyright infringement. 

  The new rule, as adopted by the Supreme Court, is that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

This inducement rule, said the Court, premises liability on purposeful, culpable expression of conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful purpose.

The classic instance of inducement is by advertising or soliciting intended to stimulate others to commit infringements. In Grokster, the evidence showed that the distributors acted with the purpose of causing copyright violations through use of the software which was suitable for and intended to promote the illegal file sharing use.

The new rule will help deter the distribution of products that have no other real function than, or that are specifically intended for, copyright infringement purposes.  It adds a new weapon to the copyright holder's arsenal.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.

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