Cops, Robbers, and Search Engines: The Questionable Role of Criminal Law in Contributory Infringement Doctrine

I. INTRODUCTION Online technologies have created a new litigation locus for the owners of copyrights, patents, and trademarks. Once content to prosecute only actual infringers, intellectual property rights holders now focus their attention on intermediaries that provide the means for massive simultaneous infringement by thousands of separate Internet users.1 Like an elite police force that has elected to target kingpins and ignore petty criminals, rights holders have begun to eschew the direct infringers, instead setting their sights on bigger game.2 This unprecedented litigation strategy has put sudden pressure on courts to evaluate the liability of indirect infringers. But the current state of contributory infringement doctrine offers inadequate guidance, resulting in inconsistent adjudications. The recent jurisprudence of the Ninth Circuit provides a perfect example. In less than two months the court flip-flopped, finding that the contributory liability standard was satisfied in the case of a search engine that led Internet users to infringing websites but not in the case of credit card companies that processed the payments that made the same infringing websites financially viable.3 The court offered little to explain the difference in the two outcomes, simply stating that "location services" were somehow different than "payment services."4 Without a developed body of intellectual property case law on which to base their opinions, federal courts have resorted to importing secondary liability principles from other bodies of law to justify their decisions. In shaping the modern rules of contributory infringement, judges are relying on indirect liability doctrines from common law tort and criminal law. The Supreme Court has instructed the lower courts to mine tort law precedent to solve contributory infringement questions.5 Meanwhile, in the context of an increasing criminalization of intellectual property law, analogies to criminal prosecution of accomplices have taken root in contributory infringement jurisprudence. For example, in the case of the credit card companies mentioned above, Ninth Circuit judge Alex Kozinski posited that the companies' provision of financial services for infringing websites was akin to the help provided by the person who drives the getaway car from an armed robbery or fronts the cash necessary to purchase narcotics.6 For Kozinksi, criminal common law provides a suitable source of content for civil infringement law. These doctrinal moves elicit little controversy. If anything, courts only face criticism from the legal academy when they supposedly stray too far from common law principles in deciding infringement cases.7 There is often a mismatch, however, between the guiding justifications for criminal law and tort law and the very different rationales for intellectual property protection. In short, the contributory liability doctrine for the former bodies of law is a poor fit for the latter. In a companion article, I contend that much more analysis needs to be done before judges assessing contributory infringement liability can learn anything useful from tort law's contributory liability doctrine.8 In this Article, I maintain that it does not make sense for contributory infringement law to depend on the same principles that determine the culpability of criminal accomplices. Contributory infringement law and its criminal law counterpart, known as "accomplice liability," have evolved in different directions because they are animated by different principles. Infringement law's expUcitly nonretributive justification clashes with the moral basis for criminal punishment of aiders and abettors of crimes. Nevertheless, a study of criminal contributory liability offers insights into the current functioning and normative goals of contributory infringement law.9 One way to find out more about the nature of something is to juxtapose it against a related entity.10 Even though contributory infringement doctrine should not be altered to resemble its criminal law counterpart, scrutiny of accomplice liability suggests some new ways of thinking about the liability of indirect infringers. …