Making Others Do the Work : Secondary Liability and the Creation of a General Obligation to the Copyright Industries

If ranchers surrounded their fields with fences that were two feet high and then demanded that the law prevent their horses from escaping, or insisted that there was a general social obligation to return any horses that had managed to escape, their request would be met with undying laughter. Yet that is precisely what the copyright industries are doing rather successfully, and they have managed this feat in part under the theories of contributory infringement and vicarious liability. The legal system has dealt solemnly with these secondary liability concepts of infringement without fully considering their significance, with the unhappy result that they may seem like commonplace and unobjectionable legal principles. As they have become more prominent, they have assumed a significance that threatens to take us far from the traditional contours of copyright via the imposition of a widespread social obligation to protect the rights of copyright holders. The emergence of secondary liability as a matter of real social and legal concern signals a battle to redefine social relations in light of the growing instability of intellectual property, and although I focus on copyright, the issue has arisen in patent and trademark law as well. The extension of secondary liability represents just one part of a much broader tendency toward the imposition of a general social duty to preserve the property of the content industries and to give them control of the means of distribution present and future, real and hypothetical. Further, the full significance of secondary liability cannot be understood unless it is considered alongside other manifestations of this tendency. The Essay contends that secondary liability takes on a much greater meaning when it is seen as closely related to other efforts in extending responsibility for protecting copyrights: in the Digital Millennium Copyright Act, in various measures intended to increase the government's responsibility for copyright enforcement, in attempts to make universities accountable to the content industries, and in the inconsistency in the operation of copyright law. The Essay continues by noting that one very serious defect that is emerging in the secondary liability jurisprudence is a tendency not to consider the role of the downstream user, who is too easily imagined to be the direct infringer necessary to support the secondary liability theories, in any careful way. The Essay argues that copyright law needs to recognize the character of downstream use by adopting an overbreadth doctrine similar to that found in First Amendment overbreadth jurisprudence. It concludes by observing that intellectual property is inherently unstable and is becoming more so, and that the extension of secondary liability is a predictable and dangerous outcome of a misplaced desire to protect what is increasingly difficult to protect