Comments on Souter’s majority opinion:

The rule in Sony is not an exception to common law established principles of secondary liability, prothesis but merely a statement that no secondary liability lies for distribution of a technology that a company knows will be used for infringment, but is also capable of non-infringing uses. Some questions then are (1) what impact can the design of a technology have on the question of secondary liability and (2) what is sufficient evident of unlawful intent and (3) what does that then mean for the distribution of the technology?

Sony’s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law. …Thus, where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony’s staple-article rule will not preclude liability. Thus, advertising an infringing use or instructing how to engage in an infringing use, show an affirmative intent that the product be used to infringe, and a showing that infringement was encouraged overcomes the law’s reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful use…

As for the impact of the technological design, the court appears to take pains to say that design should have little or no impact on liability, if capable of substantial non-infringing uses: [M]ere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product
distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct.
Yet, the court cites the design of the technology as evidence of unlawful intent, specifically its compatibility with the Napster network. This might be understandable if Napster was found incapable of substantial non-infringing uses, but it wasn’t. The court merely found that Napster also had the ability to police the infringing uses at the point of copying.

Second, the Court includes failure to design and include filtering capabilities as evidence of intent. So this is lip service to technological neutrality, but not actually technologically neutral?

This rule will set up a real training problem for big ISPs and other technology companies, who must now worry that their customer service people will send the form help email in response to questions like, “How to I email this Britney Spears song?” as opposed to “How do I email an attachment?” The Court seems to want to cabin off the run of the mill tech support responses from more “purposeful” or “morally culpable” actions on the part of the distributor. In practice, this will be more difficult to acheive. The opinion cites the few instances where the run of the mill tech support response was sent to people asking for help with infringing files as evidence of unlawful intent.