Yesterday, I wrote about Bram Cohen’s A Technological Activist’s Agenda, which included quotes that look suspiciously like active inducement under Grokster (BitTorrent and Grokster: How Much Intent Does it Take?). Today, Bram has added the following te…

The first is advertising to the identifiable market for infringing uses. That’s fine — that is inducement, plain and simple, and that’s all the evidence you should need. If you’ve got it, case closed.

My problem is with the second and third. The failure or refusal to implement filtering tools might, as the Court says, be evidence of “intentional facilitation,” as might Cohen’s 2001 advocacy of digital piracy, but it is NOT evidence of intentional inducement. If I leave my keys in the car every time I parked it that would be evidence of intentional facilitation, but it is not evidence of intentional inducement. Similarly, evidence that Streamast and Grokster make money by selling ads to people based on the volume of largely infringing uses may prove that defendant intended the infringing use, but it does not prove intentional inducement.

The whole discussion of “intent” is misplaced. The only thing that has to be intentional is the inducement. See Manville Sales, 917 F.2d at 553 (“The plaintiff has the burden of showing that the alleged infringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringement.”); Warner-Lambert, 316 F.3d at 1363 (“To succeed on this theory, a plaintiff must prove that the defendants’ ‘actions induced infringing acts and that [they] knew or should have known [their] actions would induce actual infringement.’”

In short, it is irrelevant that the defendant intended to facilitate infringement; and it is irrelevant that the defendant intended to make money from infringement. The only thing that is relevant is whether the defendant intended to induce infringement; and the only kind of unintentional inducement is inducement to do something that you didn’t know was infringement, e.g. an inducement on the mistaken belief that the alleged infringement was fair use. The Federal Circuit Bar Assoc. Model Patent Jury Instructions make this clear:

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More here: http://furtherreflection.blogspot.com/2005/06/grokster-porting-inducement-from.html

Professor Larry Lessig has been interviewed by Business Week on the U.S. Supreme Court’s Grokster decision. His overarching concern is an unclear inducement test that will have to be developed by the lower courts over time, leading to, as he pu…