Complications in Cyberspace: "The Problem Is That What Makes Sense for Liability in Criminal Law Does Not Necessarily Make Sense in the World of Intellectual Property"

Article excerpt

The struggle of American courts to control the explosion of intellectual property rights violations on soma of the most traveled highways of cyberspace poses a legal challenge to the judicial system with implications that could threaten the survival of websites clicked on by the average Internet user every day, according to Mark Bartholomew, an associate professor of law at the University at Buffalo (N.Y.). A disturbing trend in these complicated copyright and trademark cases is a judicial tendency to borrow precedents from criminal law, notes Bartholomew in "Cops, Robbers and Search Engines: The Questionable Role of Criminal Law in Contributory Infringemant Doctrine"

He adds: "The problem is that what makes sense for liability in criminal law does not necessarily make sense in the world of intellectual property. It turns out that the rules of criminal law are based on very different theoretical justifications than the rules of intellectual property law."

Much of the issue revolves around what is known as "contributory infringement law," a legal principle that deals with someone or an organization that helps someone else commit an act of copyright or trademark infringement. This can occur either by encouraging infringers, renting out commercial space where they could sell illegal material, or providing money or technological expertise to copy something from cyberspace illegally "Technically speaking, none of these entities would be guilty of infringement because they did not do the illegal copying themselves but, under the doctrine of contributory infringement, they can be held liable and suffer the same legal penalties as the direct infringer, the person who did the copying."

The idea of "contributory infringement" is much more common than the legal term would indicate. Mainstream search engines such as Google, Internet auction houses such as eBay, and credit card companies such as Visa all have faced major litigation accusing them or their employees of knowing others were using their services to copy information illegally, and holding them responsible for the infringement of others. Colleges and universities who provide the computer infrastructure that allows students to post and download digital files of copyrighted works illegally also have been charged under these contributory infringement laws.

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"Think of any major website you use that allows people to post content or search the Internet," Bartholomew says. "Chances are that website has had to think long and hard about potential liability for contributory infringement."

The problem comes when judges look to use the legal grounds utilized to punish those convicted of criminal laws for those charged with violating intellectual property rights, maintains Bartholomew. …