Toward an Epistemology of ISP Secondary Liability

Abstract

At common law, contributory infringement for copyright infringement requires 'knowledge' of the infringing activity by a direct infringer before secondary liability can attach. In the United States, the 'safe harbor' provisions of the Digital Millennium Copyright Act, that shield Internet Service Providers (ISPs) from secondary copyright liability, are concomitantly available only to ISPs that lack the common law knowledge prerequisites for such liability. But this leads to the question of when a juridical corporate entity can be said to have 'knowledge' under the statute. Legal institutions have well-established processes for inferring the knowledge state of natural persons, but corporations are complex sociotechnical networks of human and non-human elements whose information state does not map well onto such inferential methods. This question is of course not unique to copyright liability; corporate entities may be responsible for 'knowing' actions under a variety of applicable legal provisions, and the question of corporate knowledge is generally under theorized. But consideration of ISP 'knowledge' in this context points the way to consideration of corporate epistemology that must be foundational to determining corporate responsibility in copyright protection.

Keywords: ISP, copyright, DMCA, contributory infringement, secondary liability, corporate knowledge, scienter

JEL Classification: D21, D23, K22, L86, M14, O31, O34