By: Dennis S. Karjala
The inexpensive, rapid, and massive copying possibilities that digital technologies and the Internet make available have brought issues of enforcement of copyright and related intellectual property rights into strong focus. Rightowners, of course, retain all of the rights they have always had against infringers whom they can identify and who are amenable to enforcement measures, such as litigation. The infringers are often not so easy to find, however, so rightowners would like to be able to engage the assistance of other participants in the processes in which infringements are taking place. Most of the initial focus was on Internet Service Providers (ISPs) and website operators, but recently banks, advertisers, and other participants in Internet commerce have been the object of judicial and legislative attention aimed at inducing greater responsibility on the part of these participants to uncover and prevent copyright infringement on the Internet. Governments, too, have been active in both civil and criminal enforcement.
The fundamental question is the extent to which copyright owners should be able to enlist the assistance of third parties or government in the enforcement of their rights under copyright law. In the United States, a major “hook” for inducing private enforcement activity by third parties is the notion of secondary liability: contributory infringement and vicarious liability. Applying law from the analog world, courts have developed a kind of “rule of reason” approach to secondary liability, which is now partially codified and supplemented in the case of ISPs by § 512 of the U.S. Copyright Act. Courts in other countries, however, have addressed many of the same issues as the U.S. courts and largely seem to be arriving at similar conclusions. Courts everywhere are trying to balance the interests of content owners in intellectual property rights enforcement against user interests in matters like privacy, free expression, transparency in regulatory processes, and third party interests in being free to adopt business models with minimal interference from government. In that sense, we are seeing something of an international “convergence” in the approach to third party liability. The question then arises, however, why we are involved in this kind of policy balancing at all: How did it become accepted that private third parties should be part of the copyright enforcement scheme?