Robert I. Reis


Sony seeded the ongoing conundrum of balancing protected intellectual property rights with the potential of technologies that enhance the use of intellectual content. New technologies that enable use also remove many copy limitations. Traditional remedies against individual infringers served their purpose of compensation and deterrence. These forms of action have been weakened where the jurisdictional, monetary and administrative underpinnings of legal administration are compromised. This complex of factors is further exacerbated by the clash between conflicting ends of protecting intellectual property rights while at the same time ensuring appropriate public beneficial use. Most enabling technologies have the potential for fundamental public benefit. The very power of these technologies facilitates unlawful activity. The traditional function of law has been to compensate those who have been injured by imposing liability on the wrongdoer who, by intention or through a failure of duty or negligence, occasions the harm. The unprecedented growth in value of intellectual property rights have shifted the primary focus of "promot[ing] the progress of science and [the] useful arts" to the protection of exclusive rights for limited times as an end unto themselves. The use of secondary liability doctrine to overcome diminished functionality of law is appropriate when it is premised on actual infringement based on demonstrable evidence of intent, inducement, and facilitating others to infringe. Secondary liability, however, is compromised where it is used to reduce the level of care required of the right holder, or permits the right holder to externalize costs and risks of doing business. Recent secondary liability cases have raised questions as to whether the judicial process is being used as a means of enhancing market returns otherwise unjustifiable. There have been occasions where direct evidence of intent was not available and inferences were based on use of the underlying technology.' The adoption of the patent law staple article of commerce is inapposite to inferences from the use of technology for copyright infringement. It diverted utilization and development of common law tort doctrine and obscured the need for transparent means of technology readiness, utility and risk assessment in the determination of present and potential uses of technology. Recent cases have not bound themselves to the limitations of this doctrine and have adopted transparent rules regarding intentional behavior and reasonable standards of care recognizing the obligation of the right holder to remain vigilant as well the technology provider to minimize infringement and maximize the public good.