Knowledge, Intent, and Knowledge of Someone Else’s Intent

As yesterday’s post explained, contributory copyright liability emerged in the nineteenth century, but was not given a determinative test until 1970, in the Second Circuit’s opinion in Gershwin Publishing Corp. v. Columbia Artists Management, Inc. Under that test, a secondary actor could be held contributorily liable for someone else’s infringement if the actor had knowledge of the infringing activity and materially contributed to it.

That test was difficult enough to apply consistently on its own. But in 2005, the Supreme Court threw a further monkey wrench into the works when it resurrected Gershwin’s use of the term “inducement.” In a case involving the distribution of filesharing software to a group largely consisting of infringers, the Court stated the test for contributory liability as follows:

One infringes contributorily by intentionally inducing or encouraging direct infringement, see Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (C.A.2 1971)…. [T]hese doctrines of secondary liability emerged from common law principles and are well established in the law, [Sony Corp. v. Universal City Studios, 464 U.S.,] at 486 (Blackmun, J., dissenting); Kalem Co. v. Harper Brothers, 222 U.S. 55, 62–63 (1911); Gershwin Pub. Corp. v. Columbia Artists Management, supra, at 1162; 3 M. Nimmer & D. Nimmer, Copyright § 12.04[A] (2005).

MGM v. Grokster, 545 U.S. 913, 930–31 (2005).

For the past two decades it’s been unclear what the Grokster Court meant to do here. Was it reformulating the traditional test for contributory infringement to focus only on intentional inducement, rather than knowledge and material contribution? If so, then why the unqualified citations to Gershwin? If not, did this passage just add inducement as an additional form of indirect liability, or did it change Gershwin somehow?

Lower courts, for the most part, read Grokster the last way—inducement was not a complete substitution for the traditional material contribution test, but the traditional test didn’t come through unscathed either. If Grokster was just resurrecting “inducement” as a way of satisfying the second element of Gershwin, then why does Grokster talk about intent? There’s no mention of intent in Gershwin, only knowledge. If Grokster instead intended to add a third form of indirect liability to copyright law, why does the Court call it “contributor[y]” infringement?

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Contributory Copyright Liability Back Before the Supreme Court

The exterior of the U.S. Supreme Court building with white stone columns and a white facade.

On Monday, the Supreme Court is going to hear oral argument in a significant copyright case, Cox Communications v. Sony Music Entertainment. The issue before the Court is the extent of contributory copyright infringement liability, something the Court has considered twice in recent decades, in the famous Betamax case (Sony v. Universal) in 1984, and in MGM v. Grokster in 2005.

I’m interested in almost any appellate case on copyright law, but I was interested enough in this one that I submitted an amicus brief to the Court arguing how it should come out. This post will introduce the dispute in Cox case and how it emerges from the history of contributory liability; tomorrow I’ll explain how the Supreme Court’s prior intervention in Grokster has added to the doctrinal confusion; and finally on Sunday I’ll explain why I decided to take the time to write an amicus brief. Hopefully on Monday I’ll have time to do a quick review of the argument.

The Cox case represents yet another battle between content owners and technology companies over the extent of indirect liability for copyright infringement, that is, liability internet service providers might have for the infringing acts of their users. For the past two decades, much of that fight has been over the conditional immunity for ISPs provided in 1998’s Digital Millennium Copyright Act, but the Cox case returns the debate to the underlying obligations imposed by copyright law itself: when does an intermediary like Cox have to stop infringers from using its service, and when can it safely regard those infringements as Somebody Else’s Problem?

The legal question here quickly enters some deep policy waters. Intermediary liability is recognized in many areas of the law, from torts to securities fraud to criminal law to all areas of intellectual property. To be effective, intermediary liability needs to strike a careful balance. First, the direct wrongdoers have to be, in some way, difficult to pursue—if they aren’t, then there’s no need to impose liability on someone else. And second, the intermediary has to have both the knowledge and the ability to narrowly target the bad acts without causing unnecessary spillover harms to beneficial activities.

Part of the problem in achieving that balance in the modern era is that the very notion of case-by-base balancing—by courts, by regulators, by almost anyone—has gotten a bad name. As I argued in my recent article The Grapes of Roth, that style of decision-making has faded, replaced by attempts to limit judicial discretion by rigidly following the text of either statutory provisions or multi-part tests.

Recently, however, I thought I detected some inclination by some of the justices to cut back against that trend and instead emphasize that the overall balance of intermediary liability emerges from the interplay of various considerations. So I decided to give that inclination whatever additional nudge I could with my brief.

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Part II: Giorgio Armani’s Fashion Heritage and Cultural Heritage Preservation

The first part of this post reflected on what we can learn about managing fashion legacies from Mr. Armani’s choices shortly before his death. It explored how the Spring/Summer 2026 Armani fashion show indicated Mr. Armani’s control of his fashion heritage alongside of and beyond the Armani brand’s intellectual property rights in the fashion he created. In this second post, I spotlight how Mr. Armani’s decision to display his fashion creations in the Pinacoteca di Brera and in other museum venues was part of a strategy to bypass Italian cultural heritage law’s protectionist ethos, offering the designer and his brand control over the cultural narrative surrounding Armani fashion for the future.

Mr. Armani clearly had safeguarding his fashion legacy in mind over the past few years as he prepared for his brand’s 50th anniversary. As Mr. Armani stated in his last interview, “If what I created 50 years ago is still appreciated by an audience that wasn’t even born at the time, this is the ultimate reward.” Outside of a for-profit fashion industry market that might appreciate Mr. Armani’s fashion as must-have vintage pieces, Mr. Armani’s fashion can be appreciated as part of our common cultural heritage.

Clothing, accessories, and other tangible and intangible products from brands’ pasts can be culturally important to members of the public. These objects can testify to specific moments in time, be historically important, or artistically relevant. The public for whom these objects are culturally important may include a brand’s consumers and more stakeholders within and outside the fashion industry. International and national laws tell us how to treat properties that are culturally important to us. We cannot, for example, destroy “immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular” during wartime, absent military necessity. Countries should return “antiquities more than one hundred years old” to other countries that have designated these antiquities as of historical importance. Countries also need to help communities within their borders to identify, document, research, and preserve languages, performing arts, and other social rituals and traditional craftsmanship that a community recognizes as part of its cultural heritage.

Some countries that are known as source nations, like Italy, provide national legal preservation mechanisms for movable and immovable properties, including monuments and antiquities that approximate or are even more stringent than the local preservation regulations we encounter in individual states in the U.S. Public or non-profit museum collections in Italy, like that of the Pinacoteca di Brera, for example, are automatically classified as cultural property under Article 10(2) of Italy’s Code of Cultural Property. This classification is accompanied by an almost perpetual obligation to preserve the collection’s individual tangible properties, through restoration and similar activities. But works of art and other objects of particularly important historic interest, including fashion objects, may also be declared to be cultural properties under Article 10(3) of Italy’s Code of Cultural Property if they are owned by private persons or other for-profit entities. A private individual or for profit corporation, like a fashion brand, may find they have an extensive duty to preserve an object or even an archive they inherit because of a cultural importance that is administratively recognized by the Italian State.

In the United States we primarily tend to define legal duties to preserve movable, tangible works of art based on museums’ institutional duties. While our National Historic Preservation Act applies to mostly immovable objects or movable objects with a strong connection to a place, and we do recognize the importance of archeological artifacts, museum guidelines, from the International Council of Museums’ Code of Ethics to the American Alliance of Museums’ Ethics,  overwhelmingly offer the main best practices and customary norms for museums’ management of movable works of art. The classic comparative example that highlights legal differences between the U.S. as a market nation and Italy as a source nation considers the different options available to an art collector who buys a Da Vinci painting at auction in New York or in Milan. In Milan, the art collector could certainly not set fire to the Da Vinci after buying it, even if she wanted to. Italian cultural property law would make this a crime, even if the collector owned the Da Vinci herself. In New York, on the other hand, providing there are no contractual conditions attached to the Da Vinci as part of the sale, a collector could merrily take the Da Vinci home and burn it in her fireplace as her own personal property.     

As cultural properties, including works of art, become more intangible and reproducible, the reasons to physically preserve works of art become tenuous. Justifications for preservation of a tangible cultural property may morph into an obsession with controlling the symbolic meanings of cultural properties. Italian museums’ control over the reproductions of tangible cultural properties in their collections, like Michelangelo’s David, for example, has come under scrutiny. This scrutiny is especially vibrant since the justification of preserving a tangible property may morph into a mutant copyright that potentially hampers projects that are themselves culturally relevant, albeit at a frontier of commercial and non-commercial endeavors. Why preserve one tangible object that appears in multiples? Why control the reproduction of a tangible object if an unregulated digital reproduction of it can support knowledge and appreciation of the object’s historic importance? Why preserve a tangible sketch by Mr. Armani when we can digitize the sketch and appreciate its cultural importance for fashion history from anywhere in the world?

A sketch by Mr. Armani of a suit for Fall/Winter 1990, now available as part of the Armani/Archivio project

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