Uncertainty as Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms

68 Pages Posted: 16 Aug 2013 Last revised: 29 Aug 2013

John Blevins

Loyola University New Orleans College of Law

Date Written: February 15, 2013

Abstract

This Article examines the role that legal uncertainty plays as a copyright enforcement mechanism against Internet platforms. In recent years, Internet platforms have faced a new wave of copyright enforcement actions arising from their users’ activity. These actions include both civil secondary liability claims and public enforcement actions such as domain name seizures and criminal prosecution. In these enforcement actions, content owners understandably prefer broad secondary liability standards, but these standards remain subject to statutory and doctrinal constraints such as the DMCA safe harbor. Copyright owners, accordingly, are attempting to increase the breadth and expense of secondary copyright liability for Internet platforms by institutionalizing uncertainty within legal doctrine. From this perspective, prevailing in enforcement actions is less important than obtaining statutory and doctrinal constructions that create uncertain standards that raise the potential costs of enforcement proceedings upon Internet platforms. Below, I describe and critique this attempted expansion, and then propose measures to strengthen and clarify Internet platforms’ defenses. In doing so, I reject proposals that liability in this context should be determined primarily through tort principles.

Keywords: copyright, Internet, DMCA, copyright enforcement

Suggested Citation

Blevins, John, Uncertainty as Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms (February 15, 2013). 34 Cardozo Law Review 1821 (2013) ; Loyola University New Orleans College of Law Research Paper 2013-12. Available at SSRN: https://ssrn.com/abstract=2310821

John F. Blevins (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

HOME PAGE: http://www.law.loyno.edu/faculty-staf/john-f-blevins

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