June 27, 2005 | By Derek Slater

Clarifying Inducement: What's the Remedy?

The Court also leaves open precisely what the remedy is if one is found to have actively induced infringement.

Here, too, the relationship to patent law may be relevant. In that context, the appropriate remedy has not included forbidding distribution of the defendant's technology. Rather, the remedies have prohibited the ongoing, present misconduct found to be actively inducing infringement.

As Fred von Lohmann pointed out in the press conference today, alleged misconduct by the P2P companies took place years ago. What is there to enjoin today?

If past misconduct can be used to prove that present actions also amount to inducement, the potential harm to innovators would be substantial. Finding that an action from long ago amounts to inducement could open the door to claims about all subsequent activities.

The question of damages also is unclear. Statutory damages, which can be obtained regardless of actual harm in cases of copyright infringement, are not available in the patent context.

The DiMA et. al. brief similarly suggested that injunctions only apply to "the conduct that gave rise to liabilty, and should not prevent distribution of the technology itself." Furthermore, they argued that "Damages should be awarded only for harm directly caused by a company's active encouragement."

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