Thus by making it illegal or impractical for me to go around through or over the fence, the state adds its imprimatur to an act of digital enclosure. The Internet trinity tells us that information wants to be free and that the thick fingers of Leviathan are too clumsy to hold it back. The position is less clear if that information is guarded by digital fences which themselves are backed by a state power maintained through private systems of surveillance and control. See NII Copyright Protection Act of 1995, S. 1284, 104th Cong. Simply by forcing manufacturers to internalise the costs of injuries caused by their products, we produce a strong, private set of incentives that in turn encourage internal mechanisms of review and product redesign.
Plaintiffs become private attorneys-general.
There are however, also some striking differences between the familiar example of the use of strict liability in the tort setting and the imposition of strict liability on internet service providers. In the online setting, none of these claims is obviously correct. In some cases service providers may be able to prevent illicit copying relatively cheaply without imposing large social costs. Leaving aside the efficiency costs of enforcement by service providers, there is also the question of whether they are the cheapest cost-avoider. In many cases, the party best situated to avoid the cost of copyright infringement will be the owner of the copyright.