Law in the Internet Society

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LeliseGobenaFirstPaper 3 - 31 Mar 2013 - Main.EbenMoglen
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=Caught in The Crosshair: The Rise of Secondary Liability for E-Commerce Providers"

Caught in The Crosshairs: The Rise of Secondary Liability for E-Commerce Providers

 By: LeliseGobena - 22 Oct 2012


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Potential Implications

The potential implications the abovementioned line of cases may have for internet service providers, web hosts, online retailers, and others involved directly, or indirectly, in the online sale of counterfeit merchandise is expansive and has lead me to question whether or not the policy driving the law to hold these entities liable for their affiliates’ intellectual property infringement is sound. In fact, this policy is downright abusive. It is inherently unjust to require Internet intermediaries to take preventative or proactive measures to step into the shoes of law enforcement officials and police their affiliates. While I recognize that the effort, time, and money needed to individually identify, track, and sue primary infringers is extensive and inefficient, to do the alternative by casting a dangerously wide net that holds host websites responsible for the actions of their affiliates will have disastrous implications and will inevitably push society down a very slippery slope as intellectual property owners such as Louis Vuitton will inevitably try to continue to expand the boundaries of secondary liability by suing any and every party involved in some manner in the sale, whether it be advertisers, payment providers, shippers, or other activities relating to such goods. \ No newline at end of file


This draft is long with the statements of facts in trial court litigation. They don't really help to evaluate the conclusion, which seems to come out of nowhere. Evidently, there are forms of complicity between people selling infringing goods and others with whom they deal (financiers, landlords, etc.) that would be sufficient to justify imposition of legal liability. Doubtless, there are also cases in which parties with the same legal category of relationship to the parties selling infringing goods are not complicit and should not be liable in any way. If those differences are matters of fact, surely litigation at the margins will be necessary to resolve the issue. If the differences in treatment can be resolved as a matter of law you don't say how. It seems to me that we don't need quite so much of the facts in individual cases as we need some analytical progress in determining how to exit the pattern whose flaws you describe.

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Revision 3r3 - 31 Mar 2013 - 21:27:53 - EbenMoglen
Revision 2r2 - 28 Dec 2012 - 01:04:35 - LeliseGobena
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