Contributory Infringers and Good Samaritans

The introduction of online technologies has put increased pressure on the doctrine of contributory infringement as intellectual property rights holders switch their attention from direct infringers to Internet intermediaries. The Supreme Court has instructed lower courts to evaluate contributory infringement in light of traditional tort law. The common law of aiding and abetting, however, is so inconsistent as to offer no real guidance. A better approach lies in a separate but related area of tort doctrine. In a limited number of circumstances, tort law recognizes a duty to protect third parties from the actions of others. Like aiding and abetting, the law regards breach of the duty to protect parties from others\u27 misconduct as a distinct legal violation and not derivative of the direct actor\u27s tort. The interesting question is when such a duty should be recognized. To a large degree, courts wrestling with contributory infringement claims are asking the same question. When liability is imposed, contributory infringement law obligates intellectual property intermediaries to police the infringing activities of others. In charting the boundaries of contributory infringement, it makes sense to consult a well-developed body of tort jurisprudence that has already engaged in some of the hard thinking about when it is appropriate to burden someone with the obligation to prevent illegal conduct by others. The Article details the particular circumstances when common law courts have recognized a duty to control others and applies these findings from tort law to the specialized context of intellectual property