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Monopolistic Gatekeepers’ Vicarious Liability for Copyright Infringement

Recent cases have reignited debate on vicarious liability for gatekeepers providing essential services such as electronic payment processing services. Generally speaking, gatekeeper liability is undesirable when a gatekeeper lacks the right and ability to control infringement. A monopolistic gatekeeper of an essential service, however, is able to exclude infringers from its service network, which may act as an effective deterrence. Thus, although a monopolistic gatekeeper is not able to control infringement directly, it can deter infringers by threat of exclusion. This Article sets forth different prongs for vicarious liability based on three types of relationships: that of employers to their employees, that of premises providers to their tenants, and that of monopolistic providers of essential services to their users. Taking Baidu, Tiffany v. eBay, and Perfect 10 v. Visa as examples, this Article discusses the desirability of monopolistic gatekeepers’ vicarious liability for copyright infringement and explores the rationales for it, such as deterrence and corrective justice. This Article also proposes a liability regime for monopolistic gatekeepers to balance their risk with the need to prevent infringement.