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

[ Thanks to An Anonymous Reader for
this link. ]

“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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