Sound Policy and Practice in Applying Doctrines of Secondary Liability Under U.S. Copyright and Trademark Law to Online Trading Platforms: A Case Study

摘要

The explosive growth and popularity of online e-commerce platforms has dramatically opened and expanded global markets for the purchase and sale of merchandise of all kinds. It has, at the same time, spawned ongoing debate over the proper allocation of legal responsibility for the misuse of those platforms by sellers offering products that infringe upon intellectual property rights of third parties. Pre-internet case law in the copyright and trademark fields established reasonably discernible standards for determining when parties other than the direct infringers responsible for placing infringing matter into the stream of commerce could be liable under one or both of the doctrines of contributory and vicarious infringement. Those precedents established that the primary obligation to identify and take proactive measures to avert, address, and remediate instances of infringement rests with the intellectual property owner. They also defined the limited circumstances in which a third party also can be liable, namely, where the third party knowingly and materially assists in acts of infringement or has the right and ability to control infringing conduct and financially benefits therefrom.