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Fuzzy Boundaries: The Potential Impact of Vague Secondary Liability Doctrines on Innovation

Jan 20, 2011, 01:35 (2 Talkback[s])

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"Broadly stated, the rationale at the heart of the secondary liability doctrine is this: an entity that knowingly helps to facilitate the commission of an illegal act (such as copyright infringement, for example) should be penalized for its contribution to the illegal activity.1 If a technology company induces its customers to use its product for infringing purposes, for instance, both the users and the company should be liable for such infringement—the users for direct infringement and the company for contributory infringement, which is a species of secondary liability.

"The doctrine is appealing as a practical solution to widespread infringement because it targets the entities that enable illegal behavior—e.g., the Napsters and Groksters of the world—and thus eradicates the distribution mechanism that enables infringement in the first place. Judge Kozinski and Mr Goldfoot (I'll generally refer to them as "the authors" from here on), like the movie and music industries, certainly believe that the doctrine of secondary liability should be readily used as a handy and effective tool for weeding out copyright infringement. According to the authors, people "who provide powerful tools that can be used for good or evil have some responsibility to make sure that those tools are used responsibly." Put more bluntly, however, if you outlaw the tool, you needn't chase after the users, so in practice it's less a question of ethics and more a question of convenience and efficiency."

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