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 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 "places" created by code. These places created by code include the metaverse, virtual worlds, cypherspace, and cyberspace proper (the "code world"). The code 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 code world. I propose both a short-term solution centered on interim safe harbors and a longer-term 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?).
Folsom, Thomas C.
"Toward Non-Neutral First Principles of Private Law: Designing Secondary Liability Rules for New Technological Uses,"
Akron Intellectual Property Journal: Vol. 3
, Article 3.
Available at: https://ideaexchange.uakron.edu/akronintellectualproperty/vol3/iss1/3