Remedies First, Liability Second: Or Why We Fail to Agree on Optimal Design of Intermediary Liability?

Abstract

Intellectual property scholars in the area of intermediary liability spent now over two decades trying to answer when an intermediary should be liable for its users’ actions. What if all this time too much emphasis was placed on the second-order issue of the optimal design? Can this question be answered without first knowing what an intermediary is/should be obliged to perform as a consequence of such legal qualification? This Chapter argues that policy debates concerning the optimal design of intermediary liability should reflect an inverse order of inquiry in order to elicit useful insights.