Toward Non-Neutral First Principles of Private Law: Designing Secondary Liability Rules for New Technological Uses
Thomas C. Folsom · 2009
A series of recent cases revisits secondary liability in intellectual property law, solving some particular problems but without providing completely specified rules that are predictable and principled. Prior law already includes several varieties of secondary liability with a rationale for each. Together, these old and new sources point the way towards a synthesis, which may * 0 Thomas C. Folsom 2008, 2009. ** Professor, Regent University School of Law; J.D., Georgetown University Law Center; B.S., United States Air Force Academy. I thank the University of Akron for its Fall, 2008 Scholars Forum on Secondary Liability for IP Infringement: Theory, Practice and Prediction and each of the conveners and participants, and especially Professor Jay Dratler, Jr., the moderator, for their comments and separate insights on the topic. My Research Assistants this year have been Shannon Brown, Nathan Hall, Nicholas Lepire, Jonathan McDowell and Andrew Page, and I thank each of them as well. The errors are mine. 1. LAWRENCE LEsslG, CODE AND OTHER LAWS OF CYBERSPACE 6 (1999). He, of course, is talking about Because architecture can be coded, it is important to be concerned about the contribution of legal rules, which themselves might be purposely developed to encourage designs that support rather than destroy the values a polity might reasonably believe to be fundamental to the legitimate users of the new machines that access and enable cyberspace. To do so, the decision-makers will have to make some choices. Those choices will not be neutral, but will necessarily favor one set of values over another. This Article advocates explicitly specified nonneutral principles that can be neutrally applied. 1 Folsom: Toward Non-Neutral First Principles of Private Law Published by IdeaExchange@UAkron, 2009 AKRON INTELLECTUAL PROPERTY JOURNAL allow for a designed solution that is more fully specified, at least in respect of new technological uses. When all is said, secondary liability in intellectual property law still turns on two essential questions: (1) is there someone who is liable for direct infringement, and if so (2) is it just to hold someone else accountable? Both of these inquiries contain embedded variables, which are to a surprising degree free and indeterminate with respect to users of new technologies in created by code. These places created by include the metaverse, virtual worlds, cypherspace, and cyberspace proper (the code world). The world and the new machines that enable it constitute new technological uses (NTUs) that have great economic and practical consequence. I propose legal rules purposely chosen to encourage a designed architecture for NTUs that will prefer hitchhikers, guides and ordinary users to predators, pirates and spoilers of the new machines and the world. I propose both a short-term solution centered on interim safe harbors and a longerterm project to disintegrate liability-style rules from property-style rules. The solutions depend upon intentional design of liability rules (is there someone liable for direct infringement?), and of limited remedies intentionally fitted to the new technological uses for which they are designed (is it just to hold someone else accountable?).