Jay Dratler Jr.


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 modem, 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.