A Bit Liable? A Guide to Navigating the US Secondary Liability Patchwork

Abstract

In terms of scholarly and media attention, copyright's secondary liability doctrines long played a bit-part alongside direct liability's leading lady. But the decade-old ability of unheralded software providers to facilitate millions or billions of copyright infringements forced those unassuming doctrines into starring roles. This article shines a spotlight on the US secondary liability law ten years after it first took centre stage, highlighting the myriad uncertainties and controversies that now plague its operation. These uncertainties are illustrated with detailed reference to the hypothetical secondary liability of BitTorrent Inc, the original and as-yet unlitigated provider of the world's most dominant P2P file-sharing tool. The work argues that the rhetoric underpinning the existing secondary liability law is strongly technology protective, but that the breadth and depth of the uncertainties surrounding its proper application effectively abrogates those protections by stealth.

Keywords: secondary liability, contributory liability, vicarious liability, inducement liability, secondary infringement, contributory infringement, vicarious infringement, inducement infringement, p2p, napster, kazaa, grokster, aimster, code, BitTorrent

JEL Classification: O34, K10