SUPREME COURT OF THE UNITED STATES
Commil USA, LLC, Petitioner,
Cisco Systems, Inc., Respondent.
On Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit
BRIEF OF PUBLIC KNOWLEDGE, THE R STREET INSTITUTE, THE AMERICAN LIBRARY ASSOCIATION, THE ASSOCIATION OF RESEARCH LIBRARIES, THE ASSOCIATION OF COLLEGE AND RESEARCH LIBRARIES, AND THE CENTER FOR DEMOCRACY AND TECHNOLOGY AS AMICI CURIAE IN SUPPORT OF RESPONDENT
Inducement of infringement, the doctrine central to this case, is not unique to patent law: it is found in copyright as well. The two systems, copyright and patent, share a “historic kinship,” deriving from their shared purpose, defined by the Constitution, “to promote the Progress of Science and the useful Arts.” And their respective doctrines of inducement are intertwined as well, with inducement of copyright infringement originating from an analogy to patent law.
In view of this close relationship, it behooves this Court, as it considers the law of patent inducement, to ask how that doctrine has been applied in the copyright context. The answer is clear: copyright inducement requires a showing of culpable conduct demonstrating an intent to induce acts known to be infringing. Mere knowledge or notice of possible infringement does not suffice to prove inducement.
Such a clear statement of the intent requirement for proving copyright inducement should apply correspondingly to the patent context—indeed the Court has drawn such an analogy in the past. Yet petitioner Commil takes a far-reaching position beyond the original question presented, contending for the first time that inducement liability should attach upon mere notice of possible infringement. That view has been expressly disfavored in copyright, and the Court should disfavor it in patent as well.
Copyright law mandates this particular level of intent and disfavors Commil’s view for at least three reasons.
First, the intent requirement is mandated by the Constitution. Copyrights, to promote progress, must be carefully cabined so as not to reach beyond the public interest. In particular, future technological innovation must be balanced against protection of existing rights, and the intent level for inducement strongly affects that balance. Thus, this Court concluded that the balance would be struck only if inducement liability required a showing of “purposeful, culpable expression and conduct.”
Second, a lower intent requirement cannot be squared with other secondary liability doctrines of copyright. Under current copyright law, a distributor of products that might be used for infringement may enjoy a safe harbor from contributory liability if the products have “substantial noninfringing uses.” Similarly, one may not be held vicariously liable for infringement if one lacks a “right and ability to supervise” a direct infringer’s actions. These exceptions to secondary liability might be rendered ineffectual, if inducement liability could attach upon mere notice of a single instance of direct infringement.
Third, the intent requirement ensures the continued progress of technological innovation. If inducement liability could arise merely upon receipt of a letter from an intellectual property right holder—as Commil desires—then technologists and companies would face such a risk of being inundated with inducement liability demands that they might be dissuaded from introducing new products and services to market.
It certainly would be a mistake to draw the rules of copyright inducement in ways that would shut out progress and innovation. It would be a mistake to do so in patent law as well. The Court should reject Commil’s proposals to weaken the laws of inducement liability, and accordingly affirm the Court of Appeals.