R. Anthony Reese, The Relationship Between the ISP Safe Harbors and Liability for Inducement, 2011 Stan. Tech. L. Rev. 8 (2011).
The extent to which online service providers can be held liable for copyright infringement committed by users of their services is one of the more complicated and contentious copyright issues of our day. Courts have struggled with how to apply common-law doctrines of secondary liability to online activity. Congress has enacted, in section 512 of the Copyright Act, limitations on the liability of service providers, but conditioned those limitations on a fairly complicated set of conditions. And technology continues to evolve and to raise new questions. This Essay examines one relatively new issue concerning the interaction between Congressional and judicial developments: how do the statutory liability limitations apply to the developing cause of action for inducing copyright infringement? Part I briefly introduces both the statutory regime and inducement liability, and then examines one court’s suggestion that the statute’s limits simply do not apply to claims for inducement. Part II argues that it is too early in the evolution of the law of inducement to categorically deny the possibility that the statute might limit liability for at least some claims of inducement.