Pull Too Hard and the Rope May Break: On the Secondary Liability of Technology Providers for Copyright Infringement

Abstract

This article focuses on the standard of secondary liability of technology providers under copyright law. It shows that contrary to conventional understanding of the law as granting a safe harbor for technologies, courts have created a de facto open-ended liability standard in an attempt to enhance copyright enforcement. With the law becoming increasingly unpredictable, the market has developed a dual, polarized reaction. One path, which this article terms “the risk-minimizing channel”, has typically been taken by rather established and “deep pocket” companies, and is epitomized by over-protectiveness of copyrights, often at the expense of users’ interests. The second course, termed in this paper “the legal escapism route”, has been prevalent among peer-to-peer network and is best characterized as continuing the unauthorized transmission of copyrighted works while employing various measures to avoid the legal consequences which may stem from this behavior. The implications of this dichotomous market behavior on the effectiveness of secondary liability are critical. Ironically, not only has the open-ended standard been prominently ineffective in enhancing copyright enforcement, it has also fueled the processes which have led to the copyright enforcement crisis. Instead of effective enforcement, the law has resulted in market substitution, in which infringement simply shifted from one platform to another, becoming more sophisticated and evasive. The article concludes that in the face of enforcement challenges, copyright law must set a clear, predictable standard in order to effectively direct market behavior in an era of rapid technological change.