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The brief that Public Knowledge and other nonprofits filed in Commil v. Cisco is available here.
I don’t know about you, but I really love my computer. It stores all of my documents. It connects me to the world through the Internet. It reminds me about my appointments. It plays games and music. It does a million things at once, and barely ever complains, even when I toss it around on my couch or shove it into my messenger bag.
Oh, it can also rip CDs. And that means that anyone who has made a CD can send a letter to Apple and force them to stop selling laptops to me or anyone.
That at least is the argument in the ongoing case Commil v. Cisco. And though you probably haven’t heard of it or might know of it as that weird-sounding Supreme Court case about the obscure-sounding law of the “good faith belief in invalidity,” trust me—it’s a lot more interesting—or frightening—than that.
So let’s talk a little about a thing called “inducement of infringement,” which is central to this case. Say that I have a patent on entertaining a cat with a laser pointer. If you wave a laser pointer at your cat, then you have infringed my patent and have to stop doing that or pay me to do so. But what if you sell laser pointers instead? It’s a lot more efficient for me to sue you than to go off and find all your customers and sue each one individually, and the law is sympathetic to that by letting me get money from you under a theory of “inducement.”
But that’s not fair, you say. People could use laser pointers for all sorts of things besides entertaining cats, like giving presentations or leveling paintings. Why should you have to pay for “inducement of patent infringement” when people might be buying your laser pointers for these reasons that have nothing to do with the patent? You’re right, and as a result the inducement rule specifically requires intent to have others infringe the patent. As long as you don’t specifically intend for your laser-pointer-buyers to use the laser pointers for cat entertainment, I can’t get you on inducement.
With that background, here are the facts of the case. Commil owns a patent; Cisco makes Wi-Fi routers. Commil says that Cisco’s routers would infringe the patents when customers use them; Cisco says the patents are invalid. There’s a trial, the patents are deemed valid, and the court tells Cisco to pay Commil because Cisco “induced” its customers to infringe those patents. Cisco refuses, claiming that it didn’t intend to induce any infringement, because it thought the patents were invalid. That’s the question that went up to the Supreme Court: whether Cisco’s “good faith belief in invalidity” could get it out of this inducement charge.
At least, that was the question until Commil decided it wasn’t enough. Last month, Commil filed its brief with the Supreme Court, and of all things it basically argued that there should be no intent requirement at all! Instead, Commil said:
…once the inducer has knowledge of the patent and its potential relevance to its conduct vis-à-vis infringement (e.g., through discussion with the patent owner, a notice letter from a patentee, reading public materials, or internal review), the intent requirement is satisfied.
So just receiving a letter is enough for the intent requirement, according to Commil. The minute you open a letter from me saying that I think people are using your laser pointers with cats, you, as laser-seller, are instantaneously liable for inducement. Doesn’t matter if you have no idea whether your customers are using their laser pointers for PowerPoint or astronomy. Doesn’t even matter if you think your laser pointers are unsuitable as cat toys. I sent you a letter, and now you’re responsible, goes Commil’s theory.
This, in itself, is pretty bad: it makes it extraordinarily easy for a patent owner to get businesses in trouble, by simply sending letters around alleging patent infringement. We already have enough of a problem with patent demand letters. But things start looking really bad when we look at copyright.
First off: why would we even care about copyright, when the case is about patents? Copyrights are about things like literary works, while patents are about inventions, and the law about each is very different. But every once in a while, judges will copy a little patent law and stick it into copyright law, or vice versa. And the most famous example of this legal copying is in the law of—you guessed it—inducement.
You may remember a big copyright case from 2005, called MGM v. Grokster, which was over P2P file sharing. The Supreme Court wanted to say that the file sharing service was inducing copyright infringement, but at the time copyright law didn’t have an inducement rule. So the Supreme Court just borrowed patent law’s inducement rule and inserted it into copyright law.
And part and parcel of the rule was the intent requirement: Grokster said that inducement could only be found with “purposeful, culpable expression and conduct.” The Supreme Court knew exactly why the intent component was so important—it was because of “the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential.”
Lots of companies make and sell new technologies that might or might not infringe copyrights: VCRs, DVD drives, file sharing software, video sharing websites, you name it. If it was too easy to bring an inducement charge, then copyright owners would sue all of these companies out of existence, and technology developers would have a constant fear of copyright lawsuits every time they invented something new. So Grokster set the intent bar high—“purposeful, culpable expression”—to ensure that these valuable technologies went unaffected.
And then comes Commil, who wants to throw out the intent standard and replace it with a “got-a-letter” rule.
Imagine if Commil got its way in copyright law. Any time someone invents a new technology that might have the remotest use for copyright infringement, the MPAA sends the inventor a letter. Now the inventor is automatically inducing copyright infringement—that letter was enough for the intent requirement, remember?—and has to shut down or pay up. And since every single author could also send a letter and then demand money from the inventor, the “pay up” option will skyrocket. The only option will be to shut down.
They could shut down DVD players. They could shut down TiVo. They could shut down YouTube. For that matter, they could shut down Apple from selling me my laptop, since that laptop can rip CDs.
That’s what frightens me about the case: that someone would ask the Supreme Court to create that world. That the Supreme Court very well could.
Courts obviously take most of their arguments from the parties themselves, but they are willing to listen to outside groups, through the process of filing amicus curiae briefs. Those briefs are meant to give courts outside perspectives on implications or angles that aren’t obvious or argued by the main parties.
Commil is exactly the kind of case where that outside perspective is needed. The parties—and most of the groups filing amicus briefs, for that matter—are entirely focused on patent law, not looking at what will happen if the results of this case spill over into copyright, as will almost certainly happen.
And that’s where we came in. Our brief, joined by five other nonprofit groups, reminds the Supreme Court that inducement isn’t just a patent issue, and that truly worrying things might happen in copyright law if the decision goes the wrong way.
The case will be argued at the end of March, and a decision might come out any time up until the end of July. We’ll keep you posted on what happens. But for now, take a look around you, and find that piece of technology that really matters to you. Your laptop, your phone, your tablet, or even a website or app you rely on.
Now imagine that someone out there could just send a letter, and make it disappear.
The image is a letter from Abraham Lincoln to Henry Clay Whitney, dated December 25, 1858.