Liam O'Melinn


This Essay argues that the growth of secondary liability actions represents a larger attempt to impose a general obligation to protect the copyrights of the content industries, and that the full significance of secondary liability cannot be understood unless it is considered alongside other manifestations of this tendency. This 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. This 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 often imagined to be the direct infringer necessary to support the secondary liability theories, in any careful way. This 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.