Knowing How to Know: Secondary Liability for Speech in Copyright Law
49 Pages Posted: 18 Jun 2020 Last revised: 22 Jun 2020
Date Written: June 17, 2020
Contributory copyright infringement has long been based on whether the defendant, “with knowledge of the infringing activity,” induced, caused, or materially contributed to another’s infringing conduct. But few court opinions or scholarly articles have given due consideration to what it means to “know” of someone else’s infringing conduct, particularly when the unlawfulness at issue cannot truly exist until a legal judgment occurs. How can one “know,” in other words, that a court or jury will deem a particular use infringement rather than de minimis or fair use? At best, contributory defendants engage in a predictive exercise — in some cases, a more certain one, to be sure, but a predictive exercise nonetheless. To recognize this is not a mere semantic excursion: once a decision maker has determined that infringement has occurred, it is more likely, through hindsight bias, to determine that a defendant “knew” of this infringement at the relevant time, despite the realities of monitoring and assessing content.
Drawing on both the legal and epistemological literature, this Article recommends a better framing for the issue of knowledge in contributory infringement doctrine — an approach that has implications not only for copyright law but for the regulation of online content more generally.
Keywords: copyright, DMCA, knowledge, contributory infringement, secondary liability
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