“This is a whole new concept”
In a Bloomberg opinion piece, Heymann said the Cox ruling authored by Thomas “was the right result on the facts” but “takes a ‘we said what we said’ approach to judging” instead of fully explaining a rationale. Appellate opinions “should, ideally, not just state a rule but also explain its underlying rationale, anticipate its implications, and provide guidance on its application by lower courts,” she wrote. “A rule may be simply stated in theory, but its simplicity may belie the complexity of its operation in practice.”
Despite that concern, Heymann and Boyden agree that the Cox ruling is significant because of its effect on the 2nd Circuit’s Gershwin ruling that lower courts previously relied on. As Boyden told Ars, the Supreme Court “clearly cast to the side the prevailing test from the Gershwin case back in 1971.”
The previous test was “knowledge plus material contribution,” he said. “And for a long time, it’s been thought that the main way in which Internet service providers of any sort could be liable for copyright infringement by users on their systems is if they know about that infringement occurring and are providing the facilities that permit it to happen.”
The Supreme Court ruling is clear that inducing and tailoring are “the only two theories available for contributory infringement for service providers,” but “all of copyright is vague to some degree,” Boyden said. He said it is not entirely clear what constitutes the intent that is needed to show inducement or what constitutes tailoring.
“I mean, this is a whole new concept,” Boyden said. Some plaintiffs might try “to spell out theories” about circumstances in which continuing to serve infringing customers may count as contributory infringement under the new standard, he said.
A plaintiff will have to “show that the defendants did something affirmatively to make their service better suit the needs of infringers,” Boyden said. It seems clear that just selling the same service to every potential customer is not tailoring, but “we don’t have any additional guidance about what might constitute tailoring your service,” he said.