Supreme Court decision clarifies ‘third-party’ infringement of intellectual property rights

BUFFALO, N.Y. – Yesterday’s Supreme Court decision in the Limelight Networks v. Akamai Technologies case states criminal law should not bear much weight in how third-party infringement of property rights cases are decided, according to a University at Buffalo Law School professor and expert on cyberspace legal issues.

“The Limelight Networks case is part of a series of cases winding their way through the courts, all struggling with a complicated question: How should courts handle it when big companies do not infringe intellectual property themselves but somehow enable others to infringe?” says Mark Bartholomew, a professor in the UB Law School with special expertise in intellectual property and law and technology issues.

“In other words, should Internet powerhouses like Google, eBay and Amazon.com be responsible for acts of individuals that use their technologies to unlawfully copy the creations of another?”

One of the questions at the heart of the case was whether criminal laws that resolve similar issues should influence the way so-called third-party infringement cases are decided, according to Bartholomew.

“Criminal law imposes liability on accomplices, people who did not do the specific criminal act themselves but somehow contributed to it in other ways,” says Bartholomew.

“Think of someone who drives a getaway car or intentionally gives matches to an arsonist.  The plaintiff in the Akamai case argued that criminal law shows that liability should be found against a business that encourages patent infringement, even if there is no single person or entity that actually performs all the steps necessary to infringe on the patent at issue.”

Other courts have been receptive to Akamai's basic argument, says Bartholomew, using old criminal law decisions to justify imposing liability against third-party actors.

“But the Supreme Court was having none of it,” he says.  “Acknowledging that it had relied on criminal law analogies to decide different intellectual property issues in the past, the Court said that criminal law had nothing in it to help it resolve this case. 

“I think that's a good thing.  The analogy between criminal aiding and abetting liability and third-party intellectual property infringement fails given careful consideration of the reasons behind imposing criminal sanctions in the first place.  Criminal law focuses on evidence of culpable mental state.  And this makes sense given the theory of retribution that guides most of criminal law: Criminal accomplice liability is designed to punish those who unmistakably support criminal activity even if they do not commit all of that activity themselves. 

“Intellectual property law is different.  Its animating goal is instrumental, to encourage the creation of the greatest number of expressive and inventive works.  In this area of the law, we care less about what people think and more about what they do.  Give the Court credit for recognizing this difference, and drawing a clear line between criminal law and intellectual property law, at least on this particular issue.”