The Supreme Court responded by borrowing a new theory of liability, nowhere stated in the Copyright Act, from the patent statute. The Patent Act includes a provision stating that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.”[1] The Court, per Justice Souter (writing for three Justices), declared that:
For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.[2]
Read broadly, Sony and Grokster supply a possible answer to the argument that partial or total abandonments of an author’s copyright interests are necessarily impermanent. Copyright and patent, the argument would go, are closely related.[3] If Congress, in drafting the Copyright and Patent Acts, omitted provisions in one statute that nevertheless appear relevant to the other, the courts should not lightly presume that the difference in language reflects a difference in legislative intent. Rather, courts should (as the Supreme Court did in both Sony and Grokster) consult the purposes behind the statutory language in one statute and ask whether the purpose justifies reading the other statute in a parallel fashion.
The Patent Act’s abandonment provisions exist to protect, in the Supreme Court’s words, “the unquestionable right of every inventor to confer gratuitously the benefits of his ingenuity upon the public.”[4] Copyright policy provides no basis to deny authors the opportunity to confer a similar public benefit. An abandoned invention irrevocably enters the public domain and cannot thereafter be withdrawn.[5] The same consequence should follow an author’s decision to grant rights in her work to the public, whether partial (under an open-content license) or in toto (via abandonment). If we recognize authors’ rights to permit free copying and modification of their works, it should follow that those rights can be made (as they are under the patent statute) permanent, irrevocable, and not subject to termination.
There is reason to doubt, however, whether the courts will read the Patent Act’s abandonment provision into the Copyright Act in the same way that Sony and Grokster imported some of the patent statute’s liability provisions. In both Sony and Grokster, the Copyright Act was silent on the question
before the court, and the question was whether the court would fill this
