Uncertainty as Enforcement Mechanism: The New Expansion of Secondary Copyright Liability to Internet Platforms

This Article examines the role that legal uncertainty plays as a copyright enforcement mechanism against Internet platforms. In recent years, Internet platforms have faced a new wave of copyright enforcement actions arising from their users' activity. These actions include both civil secondary liability claims and public enforcement actions such as domain name seizures and criminal prosecution. In these enforcement actions, content owners understandably prefer broad secondary liability standards, but these standards remain subject to statutory and doctrinal constraints such as the DMCA safe harbor.

Copyright owners, accordingly, are attempting to increase the breadth and expense of secondary copyright liability for Internet platforms by institutionalizing uncertainty within legal doctrine. From this perspective, prevailing in enforcement actions is less important than obtaining statutory and doctrinal constructions that create uncertain standards that raise the potential costs of enforcement proceedings upon Internet platforms. Below, I describe and critique this attempted expansion, and then propose measures to strengthen and clarify Internet platforms' defenses. In doing so, I reject proposals that liability in this context should be determined primarily through tort principles.