“This is a completely new concept”
a Bloomberg opinion pieceHeymann said A lot The decision, authored by Thomas, “was the correct conclusion on the facts,” but instead of fully explaining the reasoning, “takes a “we said what we said” approach to judgment.” Appellate opinions “ideally should not only state a rule, but also explain its rationale, anticipate its consequences, and provide guidance on its application by lower courts,” he said. “A rule may be stated only in theory, but its simplicity may belie the complexity of the operation in practice.”
Despite this concern, Heymann and Boyden agree A lot the ruling is significant because it affects the 2nd Circuit Gershwin a decision previously relied upon by lower courts. As Boyden told Ars, the Supreme Court “clearly sided with the prevailing test. Gershwin The event that happened in 1971.
The previous test was “knowledge and material contribution”. “And it has long been the case that the primary way any Internet service provider can be held liable for copyright infringement by users on its systems is if it knew that infringement was occurring and provided facilities that allowed it to occur.”
The Supreme Court decision is clear that evocation and tailoring are “the only two theories available to service providers for contributory infringement,” but “all copyrights are vague to some degree,” Boyden said. He said it was not entirely clear what the intent required to show encouragement was or what constitutes tailoring.
“I mean, it’s a whole new concept,” Boyden said. Some plaintiffs may try to “theorize” about the circumstances under which continuing to serve infringing customers might constitute a violation under the new standard, he said.
Boyden said a plaintiff “must show that the defendants did something positive to make their services better suited to the needs of infringers.” It seems clear that it’s not tailor-made to sell the same service to every potential customer, but “we don’t have any additional guidance on what to tailor your service to,” he said.
