Houston Law Review
Secondary copyright liability and secondary patent liability largely parallel each other. And yet, secondary copyright cases are often quite different from secondary patent cases. Whereas most secondary patent infringers act in a way that targets a particular patent or group of related patents, secondary copyright infringement mostly arises in the context of technologies or services that work across all copyrighted works. Secondary copyright liability raises issues of platform liability in ways that secondary patent liability usually does not.
The current structure and framing of secondary copyright liability inadequately account for this distinction. The result is that secondary copyright liability tends to focus too much on mens rea and fault and not enough on avoiding both under- and over-deterrence. To shift toward the latter, we might think about adjusting secondary copyright liability in terms of both substance and remedies. On substance, we could limit secondary copyright liability to exact copies, but then require some level of reasonableness rather than merely the removal of known infringing works. On remedies, we could eliminate statutory damages for secondary infringement, relying instead on disgorgement of profits directly attributable to the infringement. Schemes like these have the potential to achieve a better balance between harnessing the power of intermediaries to police infringement and avoiding a chilling effect on noninfringing activities. Even in the absence of doctrinal changes, this reframing of secondary copyright liability both explains why courts have shifted the law in certain directions and reveals when those shifts have gone either too far or not far enough. A platform liability lens is a much more sensible way to understand and shape the structure of secondary copyright law.
University of Houston Law Center
Intellectual Property Law | Law
Felix T. Wu,
The Structure of Secondary Copyright Liability,
Hous. L. Rev.