Academic

Bartholomew on Secondary Liability after MGM Studios v. Grokster

By Lawrence Solum

Mark Bartholomew (University at Buffalo Law School) has posted Copyright, Trademark and Secondary Liability after Grokster (Columbia Journal of Law & the Arts, 2009) on SSRN.  Here is the abstract:

Even though secondary infringement doctrine in both copyright and trademark stems from the same common law starting points, the doctrines have moved in very different directions, particularly in the last decade. As copyright litigants expanded their litigation strategy to include online intermediaries, secondary copyright liability was stretched to encompass a wider array of defendants with increasingly tangential relationships to the direct infringer. Meanwhile, even though similar online threats jeopardized the ability of trademark holders to safeguard their brands' goodwill, courts refused to implement a similar expansion for secondary trademark liability. Although courts are aware of this doctrinal double standard, they offer no explanation for it. This article tries to provide that explanation by chronicling the case law in this area since the Supreme Court's decision in MGM Studios v. Grokster (a previous article traced the case law up to the Grokster decision) and comparing it to traditional rationales for imposing liability on indirect actors. The article speculates that the divergence in secondary liability standards owes more to the litigation and public relations strategies of copyright interests than obeisance to deep rooted common law principles.

Full post as published by Legal Theory Blog on February 11, 2009 (boomark / email).