The Risks of Using Secondary Liability Legislation as a Means of Reducing Digital Copyright Infringement
Julie Erin Land · Digital Commons-DePaul (DePaul University) · 2016
surrounding circumstances.' Secondary liability could be established from this element, regardless of whether the defendant's product has substantial noninfringing uses and regardless of whether the product promotes, rather than inhibits, the progress of the sciences and useful arts.6 In this article, I will first discuss the history of secondary copyright liability, focusing particularly on contributory infringement and its application to traditional defendants, product distributors, and Internet service providers ("ISPs").I will also briefly explain and discuss the relevance of secondary liability and the Digital Millennium Copyright Act ("DMCA") safe-harbor provisions.Next, I will explain Senate Bill 2560, Senator Hatch's purposes in proposing it, the reaction to it by the technology industries, and its potential implications.Finally, I will critique the bill and voice my support for an alternative measure based on public awareness and education. II. BACKGROUNDSecondary liability for copyright infringement so far has been based largely on case law rather than statute.The Copyright Act of 1976 expressly imposes liability upon only direct infringers.7 It does not mention, on a general level, whether those who aid, abet, induce, contribute to, encourage, participate in, or benefit from those infringers may also be liable.8 However, courts have long 5. Id. 6. Id.The bill would be applied as a separate test.Id.Although it does not replace the test in Sony, it disregards it by allowing contributory infringement based on intent even when a plaintiff fails under the Sony test.See id.; Sony, 464 U.S. at 442.The bill is also inconsistent with the purpose of Copyright Law set forth in Article I, Section 8, Clause 8 of the United States Constitution, which grants Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."U.S. CONST.art I, § 8, cl.8. 7. See 17 U.S.C § 501 (2005).8. Contributory infringement and vicarious liability doctrines have not been codified.However, there are statutes addressing secondary liability with reference to specific circumstances.See 17 U.