The Reconciliation of Secondary Liability for Trademark and Copyright Law Through Tort Law in Different E-Commerce Situations. a Comparative Study Between Us and EU Systems.
Iris López Martínez · SSRN Electronic Journal · 2020
Over the last twenty years, IP infringements in online platforms and e-commerce Intermediaries have been fast growing. Since direct infringers are usually posting content online anonymously, trademark and copyright holders try to seek enforcement under secondary liability against Internet Intermediaries. Internet services providers (ISPs), search engines, and online marketplaces are the most prominent intermediaries. There is no harmonization of secondary liability under International IP law. US and EU lawmakers have enacted consistent regulations, aimed at balancing IP protection and innovation. Such safe harbors exempt Internet Intermediaries from liability unless they are aware of and do not adequately impede infringing content. But, how can an ISP become aware of IP infringing content on its platform? Even though they do not have a legal obligation to monitor illegal content, legislators kindly invite Intermediaries to track user activity for current and upcoming infringement. Secondary liability is further recognized by US and EU Courts; however, the case law is still in the process of fine-tuning. Despite the fact that every country names their own secondary liability theories (US applies the contributory and vicarious liability doctrines, while the EU applies general principles of civil, tort, competition and criminal laws), they both focus on similar standards: 1) the standard knowledge and awareness of the infringement, and 2) the right and ability to supervise. Current US and EU secondary liability standards do not address all reasonable factors to trigger secondary liability. This influences legislation and case law, setting an uncertain secondary liability outcome of IP infringement cases against Internet Intermediaries’. I suggest that tort law can tackle this problem.