Document Type


Publication Date

January 2009


As lawyers, judges and law professors reach retirement age, there is little that we remember of our first-year course in torts. The cases we studied, our professors’ personalities—even the psychological trauma of the first pointed Socratic question directed at us—all are lost in the mists of time.

Yet some things remain. Among them are the name and facts of Palsgraf v. Long Island Railroad Co., one of the most memorable cases in all of American common law. A great judge, Benjamin Cardozo, penned the majority opinion.

The facts of Palsgraf stick in our minds because Judge Cardozo helpfully outlined them in his very first paragraph. Two men rushed to catch a moving train. One made it easily. The other, carrying a nondescript package covered in newspaper, teetered near the open door. A guard held the door open and reached out to steady him, causing the package to fall on the rails. The package turned out to contain fireworks, which exploded. The resulting shock wave “threw down some scales at the other end of the platform, many feet away.” The falling scales injured the plaintiff, who sued the railroad for negligence. These odd facts—a law professor’s bizarre hypothetical come to life—survive the passage of time and stick in memory.

Yet time and custom have distorted Judge Cardozo’s opinion. We remember the case as one about proximate cause. Indeed, casebooks (at least in my student days) used Palsgraf to introduce us to that element of torts. Judge Cardozo, however, apparently thought the case was about duty and culpability, to which he devoted nearly all of his opinion.

Cardozo wrote that there could be no duty to plaintiff unless the risk of injury to her was reasonably foreseeable. In other words, the railroad owed the plaintiff no duty unless its employee could reasonably foresee the danger to her and so was culpable in failing to avoid it.

Only in dictum, in his penultimate paragraph, did Judge Cardozo address (and dismiss) the issue of proximate cause, writing “[w]e do not go into the question now.” That issue, he opined, was really a matter of damages: the remedy, not liability. Yet, over the years his opinion has become a symbol of the very thing he did not decide. Today we no longer consider proximate cause an element of remedy alone; it has become an element of the tort. Right and remedy are now inextricably intertwined, as befits a legal system that tries to provide no right without a remedy.

Although bizarre, the simple facts of Palsgraf are worlds away from the technological complexity of the Internet, on-line file sharing, and Web-spread pornography. But the fundamental things apply. In a world where corporations are still legal abstractions and liability necessarily falls ultimately on people, we are reluctant to impose tort liability without evidence of proximate cause and culpability.

Infringement of intellectual property (IP) is just a kind of tort. The “duty” to respect IP falls on the entire world, independent of contract and privity—a breadth of application characteristic of torts. Yet, duties must have their limits. They cannot extend so far outward that tendrils of unforeseen and unforeseeable liability infiltrate every part of our complex, interdependent economy.

Judge Cardozo wrestled with how far along a railroad platform liability for dropping a package containing dangerous but hidden items should extend. Just so, courts today must decide how far out on the web of Internet commerce infringement liability must extend. Their decisions inevitably involve proximate cause.

Insofar as culpability is concerned, IP infringement cases differ from other tort cases in one important respect. Primary or direct liability for infringement has always been a strict-liability offense, independent of culpability and the infringer’s intent or state of mind. Yet, secondary liability—contributory infringement, inducement liability and vicarious liability—is not so limited. As court after court has addressed novel issues of secondary liability, it has fallen back on the tried and true notion of culpability. The Supreme Court itself did so in creating a cause of action for intentional inducement of copyright infringement out of whole common-law cloth.

Even the struggle to reconcile culpability with the strictness of direct liability is not new. Judge Cardozo wrestled with the very same question in Palsgraf. For him, the difficulty was reconciling the notion of culpability with the fact that negligence was and is a non-intentional tort. His decision earned a place in law school casebooks by creating a modified version of culpability for cases of negligence: failure to recognize and avoid foreseeable harm. By introducing the notion of foreseeability, Judge Cardozo recognized the non-deliberate nature of negligence but avoided the unfortunate consequence of unlimited liability for remote and unpredictable harm. His decision has come to stand for a simple but very general principle: prudential judicial reluctance to let liability extend too far.

This short paper attempts to show how courts can build—and are building—a rational jurisprudence of secondary liability for IP infringement upon the foundation of these two great common-law principles of tort law: proximate cause and culpability. Besides this introduction (Part I), the paper has four sections. Part II discusses the notion of proximate cause and its application to cases assessing liability for IP infringement. It also explores a modern, economic test for proximate cause: the concept of least-cost avoider. Part III discusses the principle of culpability in cases of secondary liability and how to reconcile it with the traditional strictness of primary liability. Part IV concludes with some observations about how decisions based on the probable consequences of alternative legal rules (Dare I say, “policy”?), still lurking in this obscure, nerdy field of IP, might some day re-emerge to give the common law new life.

Publication Title

Akron Intellectual Property Journal

First Page