Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement based on common law tort rules. But common law tort is an enormous subject. Without further instruction, the subject area is too vast and contradictory to offer a realistic template for reform. Even when the narrower body of tort law for secondary actors is consulted, there is still too much variation in the existing precedent to provide the necessary guidance.
Instead of simply instructing the courts to consult tort law, we stress two specific reforms to make contributory infringement decisions more logical and predictable. First, tort law’s rules for causal analysis provide a significant resource for contributory infringement doctrine. The intuitive appeal of causal reasoning as well as its frequent presence in other legal subjects makes it a natural fit for contributory infringement doctrine. In particular, we urge courts wrestling with contributory infringement to adopt tort law’s bifurcation of factual causation and the separate public policy questions of proximate cause. An unfortunate trend in the recent contributory infringement decisions has been a blending of these two legal issues, resulting in normative decisionmaking cloaked in empirical language. Observing a strict line between factual and proximate cause would cure this problem and produce precedents less threatening to nascent technologies.
Second, courts can profit from the refinements in causal analysis already developed in the field of epidemiology. By modeling the complex interaction between causal agents, epidemiologists gain a better sense of where resources should be deployed in combating diseases that adversely affect public health. We advocate similar moves in intellectual property law to help determine which intermediaries should face liability for others’ infringing conduct. Epidemiologists sort out causal effects by explicitly defining minimally sufficient multiple component mechanisms, distinguishing between general and specific causation, and identifying suitable referents for each identified link on a causal chain. By borrowing from the epidemiologist’s playbook, judges evaluating contributory infringement disputes can separate the causal from the non-causal and the actionable from the non-actionable instead of relying on hazy intuition to determine the viability of online business models.