Academic journal article Journal of Politics and Law

Examining the Dilemma between Theory and Epistemology of ISP Knowledge for Secondary Liability

Academic journal article Journal of Politics and Law

Examining the Dilemma between Theory and Epistemology of ISP Knowledge for Secondary Liability

Article excerpt

Abstract

Holders of rights sue the intermediately service providers (ISPs) for contributory liability through the ISPs knowledge of infringement specifically for copyright infringement trademark and other rights. Formalism in the light of corrective justice strictly limits ISPs liability to fault based liability theory, but to evaluate ISPs fault gives credit to the probabilistic knowledge that requires ISPs to serve as the police for owners of rights. Furthermore, they are for establishing corrective justice law applies the mathematics though on the knowledge of fault via attempts to achieve all of the answers regarding the measure of evaluating ISPs' knowledge from secondary liability rather than computing philosophy, social science, or realism. Other common theories recognize chief - justice brain or reasonable man mind induced as critical of ISPs' knowledge of infringement. This is in contrast with computing mind philosophy. Research will answer inconsistency of theories and ISP knowledge to protect all parties' rights.

Keywords: intermediately service providers (ISPs), secondary liability, formalism, reasonable man mind, computing knowledge

1. Introduction

Nowadays, secondary liability rules a range of diverse activities including copyright and trademark infringement to shield the user rights, service providers, and exclusive right holders (Werner Z. Hirsch, 1988 p.165; Patrice Jourdain2007 p.9; SaidMortaza Qasemzadeh, 2008 p136; International Encyclopaedia of Comparative Law, 1983 para 196) (Note 1). It has become more prevalent owing to technological advancements (Noblett, Pollitt & Presley, 2000) (Note 2) and it has manifested a significant revelation in ISP liability regime, since that time secondary liability (for ISP) has moved away from giving more attention to ISP strict liability towards liability based on- fault for copyright infringement in US. (Playboy Enterprises Inc. v. Netscape Communications Corp, 2004) (Note 3). This change which focuses on knowledge about the infringement as a legal factor of secondary liability so as to protect parties' rights in online services (Ahmad, 2011; Koster & Jurgens; Resenberger, Sussman & Silberberg, 2011) (Note 4) . Therefore, to a co- existence between parties' rights, this gives rise the following questions; Is it time to rely on the common theories (secondary liability with reasonable man mind)? Is it time to give importance to computing philosophy of knowledge? To answer these questions, this study would examine the current theories in light of formalism and instrumentalism first and then would discuss the epistemology of knowledge.

2. Common Theories and Knowledge Standard for Secondary Liability

Common theories state that the aim of secondary liability is to establish justice between parties or to act as an instrument for corrective justice to correct imbalances caused by one party's breach of duty to another (Heidt, 1990; Cane, 1997; Donoghue v. Stevenson, 1932) (Note 5). The concept of corrective justice is an element found in all common theories: theories based on formalism, theories based on strict liability, and theories based on both fault and instrumentalism. Among these theories, formalism, the theory of liability based on fault and instrumentalism are in scope of this paper regarding the ISP knowledge standard for secondary liability.

2.1 Formalist Theory and Knowledge Standard for Secondary Liability

The formalist theory (also called mechanical jurisprudence) (Tamanaha, 2009) (Note 6) is a common legal theory that began in the 19th century in the US (Michael, 2001) (Note 7) as an application of norms to facts. Formalists have viewed the law from the normative approach or as a system that stems from Aristotle's logic. Formalists believe that to identify the basics of law, we first need to delve inside the law to find out the legal principles and sub-principles (Ansarie, 2012). Then, the principles and their sub- principles must be arranged in a logical form so that decisions can be made. …

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