Using tort law accessory liability to protect intellectual property rights

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Abstract

An accessory is someone who is wrongfully involved in another’s wrong. Accessory liability is an important mechanism for enhancing the protection afforded to holders of legal rights against wrongful interference in those rights. Accessory liability in tort law has been extended to apply to statutory intellectual property (IP) wrongs, that is, statutory torts, and thereby serves an important function in protecting economic and other interests, albeit in a context where other parties may have competing interests. Such liability is narrow, however, as it generally requires culpable conduct on the part of the intermediary or ancillary party, established by a rigorously applied knowledge element. As such, in the context of widespread, internet-facilitated, IP infringements, the fault-based concept of accessory liability is unlikely to provide for redress against intermediaries whose conduct facilitates such infringements. Accessory liability has largely failed to deter such infringements and is probably not an appropriate mechanism for balancing the competing interests that are at stake.
Original languageEnglish
Pages (from-to)275-289
Number of pages15
JournalTorts Law Journal
Volume23
Issue number3
Publication statusPublished - 2016

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intellectual property
right of ownership
liability
Law
interference
Internet
knowledge
economics

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title = "Using tort law accessory liability to protect intellectual property rights",
abstract = "An accessory is someone who is wrongfully involved in another’s wrong. Accessory liability is an important mechanism for enhancing the protection afforded to holders of legal rights against wrongful interference in those rights. Accessory liability in tort law has been extended to apply to statutory intellectual property (IP) wrongs, that is, statutory torts, and thereby serves an important function in protecting economic and other interests, albeit in a context where other parties may have competing interests. Such liability is narrow, however, as it generally requires culpable conduct on the part of the intermediary or ancillary party, established by a rigorously applied knowledge element. As such, in the context of widespread, internet-facilitated, IP infringements, the fault-based concept of accessory liability is unlikely to provide for redress against intermediaries whose conduct facilitates such infringements. Accessory liability has largely failed to deter such infringements and is probably not an appropriate mechanism for balancing the competing interests that are at stake.",
author = "Joachim Dietrich",
year = "2016",
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journal = "Torts Law Journal",
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Using tort law accessory liability to protect intellectual property rights. / Dietrich, Joachim.

In: Torts Law Journal, Vol. 23, No. 3, 2016, p. 275-289.

Research output: Contribution to journalArticleResearchpeer-review

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AB - An accessory is someone who is wrongfully involved in another’s wrong. Accessory liability is an important mechanism for enhancing the protection afforded to holders of legal rights against wrongful interference in those rights. Accessory liability in tort law has been extended to apply to statutory intellectual property (IP) wrongs, that is, statutory torts, and thereby serves an important function in protecting economic and other interests, albeit in a context where other parties may have competing interests. Such liability is narrow, however, as it generally requires culpable conduct on the part of the intermediary or ancillary party, established by a rigorously applied knowledge element. As such, in the context of widespread, internet-facilitated, IP infringements, the fault-based concept of accessory liability is unlikely to provide for redress against intermediaries whose conduct facilitates such infringements. Accessory liability has largely failed to deter such infringements and is probably not an appropriate mechanism for balancing the competing interests that are at stake.

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