Using tort law accessory liability to protect intellectual property rights

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.