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Towards Non-Neutral Principles of Private Law: Designing Secondary Liability Rules for New Technological Uses

Akron Intellectual Property Journal, Vol. 3, p. 41, 2009

62 Pages Posted: 1 Mar 2009 Last revised: 21 Sep 2009

Thomas Folsom

Regent University School of Law

Date Written: November 1, 2008

Abstract

A series of recent cases revisits secondary liability in intellectual property law, solving some particular problems but without providing completely specified rules that are predictable and principled. Prior law already includes several varieties of secondary liability with a rationale for each. Together, these old and new sources point the way towards a synthesis which may allow for a designed solution that is more fully specified, at least in respect of new technological uses. When all is said, secondary liability in intellectual property law still turns on two essential questions: (1) is there someone who is liable for direct infringement, and if so (2) is it "just" to hold someone else accountable? Both of these inquiries contain embedded variables which are to a surprising degree free and indeterminate with respect to users of new technologies in "places" created by code. These places created by code include the metaverse, virtual worlds, cypherspace, and cyberspace proper (the "code world"). The code world and the new machines that enable it constitute new technological uses (NTUs) that have great economic and practical consequence. I propose legal rules purposely chosen to encourage a designed architecture for NTUs that will prefer hitchhikers, guides and ordinary users over predators, pirates and spoilers of the new machines and the code world. I propose both a short term solution centered on interim safe harbors and a longer term project to disintegrate liability-style rules from property-style rules. The solutions depend upon intentional design of liability rules (is there someone liable for direct infringement?), and of limited remedies intentionally fitted to the new technological uses for which they are designed (is it "just" to hold someone else accountable?)

Keywords: Secondary liability, Non-neutral rules, Intellectual property, new technological uses, hostage style, consent style, safe harbors, distintegrating intellectual proprerty

Suggested Citation

Folsom, Thomas, Towards Non-Neutral Principles of Private Law: Designing Secondary Liability Rules for New Technological Uses (November 1, 2008). Akron Intellectual Property Journal, Vol. 3, p. 41, 2009. Available at SSRN: https://ssrn.com/abstract=1351005

Thomas C. Folsom (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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