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Toward an Epistemology of ISP Secondary Liability
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DOI: 10.2139/ssrn.1920050
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1 23
Philosophy & Technology
ISSN 2210-5433
Volume 24
Number 4
Philos. Technol. (2011) 24:437-454
DOI 10.1007/s13347-011-0046-3
Toward an Epistemology of ISP Secondary
Liability
Dan L. Burk
1 23
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SPECIAL ISSUE
Toward an Epistemology of ISP Secondary Liability
Dan L. Burk
Received: 30 April 2011 /Accepted: 17 August 2011 /Published online: 24 November 2011
# The Author(s) 2011. This article is published with open access at Springerlink.com
Abstract At common law, contributory infringement for copyright infringement
requires “knowledge” of the infringing activity by a direct infringer before secondary
liability can attach. In the USA, the “safe harbor” provisions of the Digital
Millennium Copyright Act, that shield Internet Service Providers (ISPs) from
secondary copyright liability, are concomitantly available only to ISPs that lack the
common law knowledge prerequisites for such liability. But this leads to the question
of when a juridical corporate entity can be said to have “knowledge” under the
statute. Legal institutions have well-established processes for inferring the
knowledge state of natural persons, but corporations are complex sociotechnical
networks of human and non-human elements whose information state does not map
well onto such inferential methods. This question is of course not unique to
copyright liability; corporate entities may be responsible for “knowing” actions
under a variety of applicable legal provisions, and the question of corporate
knowledge is generally under theorized. But consideration of ISP “knowledge” in
this context points the way to consideration of corporate epistemology that must be
foundational to determining corporate responsibility in copyright protection.
Keywords Copyright . Contributory infringement . Epistemology. Knowledge .
Corporations . ISP
1 Introduction
Law and legal procedure function in society as a system of formalized ethics,
bestowing rights and imposing responsibilities on the entities under their
jurisdiction. The responsibilities that are either undertaken or imposed on an Internet
Service Provider (ISP) will frequently have their origin in such legal requirements.
Philos. Technol. (2011) 24:437–454
DOI 10.1007/s13347-011-0046-3
D. L. Burk (*)
University of California, Irvine, 401 East Peltason Drive, Irvine, CA 92697-8000, USA
e-mail: dburk@law.uci.edu
Among the legal duties and liabilities associated with provision of Internet services
is some degree of responsibility for the activity of subscribers and users of the
service. Across the globe, ISPs have with varying degrees of success been subjected
to lawsuits, legislation, and regulation for failure to police a range of user content
that includes libel, threatening speech, hate speech, and unauthorized posting or
distribution of copyrighted material. It is this last type of content, and an aspect of
the responsibilities imposed on ISPs for such content, that I propose to consider here.
In this paper, I examine one parameter for ISP responsibility in the area of
copyright, specifically, the requirement that an ISP have “knowledge” of copyright
violations in order to be held indirectly or secondarily liable for the actions of its
users and subscribers. I show that such responsibility is tied to the more general
problem of determining the state of knowledge of an organization. I adopt the ISP
“safe harbor” provisions of the American Digital Millennium Copyright Act
(DMCA) as a vehicle for introducing and interrogating the characteristic of
corporate knowledge. I begin my discussion by reviewing the scienter, or mental
state requirements of secondary copyright liability as developed in common law, and
then as defined in the “safe harbor” statutory provisions of the DMCA. I then turn to
the problem of scienter as it exists more generally in regard to corporate entities,
looking particularly at corporate knowledge as it has been addressed in recent
securities fraud decisions, in the hope of shedding some light on how the similar
requirements of the DMCA safe harbor provisions might be treated by judicial
interpreters. This discussion allows me to sketch the overall parameters of the
problem of corporate knowledge. I conclude with some observations about existing
theoretical approaches that might be applied to the overall problem of corporate
scienter.
2 Copyright Liability
Copyright infringement has emerged as perhaps the leading source of legal controversy
surrounding the Internet and related digital media. Present day computing technology
functions by making digital copies: in computer memory, on disc drives, on DVDs, on
network servers, and elsewhere. Some copies are made automatically and imperceptibly
as the machine operates; other copies can be made deliberately by users of the
technology. Moderately priced computer technology gives the majority of people in
developed countries ready access to copying technology, and even in the poorest nations
facilitates ready access to unauthorized copies.
Copyright laws vary a bit internationally, but in general copyright infringement is
a strict liability offense: one need not intend, nor even know that one has copied in
order to violate the exclusive rights of the copyright holder. For example, in the
famous lawsuit against former Beatle George Harrison for infringement of the song
“He’s So Fine” by his composition “My Sweet Lord,” evidence at trial suggested
that Harrison’s copying was entirely unconscious—Harrison had likely heard “He’s
So Fine” as a hit radio song, and unwittingly adopted some of its distinctive structure
in his own composing (Bright Tunes Music v. Harrisongs Music 1976). Nonetheless,
Harrison was found to infringe, because the copyright statute does not require
“knowing” or “intentional” copying for a violation to occur—any unauthorized,
438 D.L. Burk
unprivileged copying constitutes a direct violation of the statute. Subconscious
copying is as much a violation of the statute as intentional copying.
However, this rule is relaxed somewhat where indirect violation of copyright is at
issue. Copyright law has long recognized that responsibility for infringement might
sometimes lie with individuals other than those directly committing acts of
infringement. Indeed, some would-be infringers might seek to profit from
infringement without actually copying or otherwise directly violating the exclusive
rights of the copyright holder—they might instead aid or encourage others to
infringe, avoiding the acts that actually define infringement. It has long been held
that such assistance and encouragement to direct infringement should itself be the
basis for some type of indirect liability.
Such secondary or indirect liability was recognized at common law in two forms
(Yen 2000; Elkin-Koren 2006). The first takes the form of vicarious liability, by
which a supervisory entity is held responsible for activities of direct infringers within
its control. The doctrine originated in a type of respondeat superior liability, in
situations where an employee or agent of a principal engaged in unauthorized
reproduction, public performance, or other statutorily excluded activity that would
constitute direct infringement. For example, in the well-known “dance hall” cases,
musical bands employed by dance halls or nightclubs played copyrighted music
without a license (Dreamland Ball Room v. Shapiro, Bernstein & Co. 1929).
Because the owner of the dance hall had engaged the band, had the ability to
supervise or dismiss the band, and profited from the activity of the band, the owner
was held vicariously liable for the band’s infringing activity. In effect, the actions of
the band were imputed to the dance hall owner, whether or not he was actually aware
of the activity.
Vicarious copyright liability was later expanded beyond the traditional boundaries
of respondeat superior; liability was not necessarily limited to employment situations
but was applied in any situation where control over the infringing activity was or
could have been exercised. For example, courts held that landowners could be held
responsible for the infringing activities of business invitees on their land, given that
the landowners had the right and the ability to eject invitees engaged in infringing
activity. Through such cases vicarious liability evolved beyond the relationship of
principal and agent into a type of formulaic default rule: any commercial situation
where there was a right to supervise or control the activity became ripe for
application of the doctrine, not merely those situations arising out of traditional
master/servant relationships.
But the hallmarks of master/servant liability live on the present doctrine. The
legacy of this history is that vicariously liable infringers need not have actually
known about the infringing activity in order to be accountable for it. This approach
remains generally consistent with other instances of agency or respondeat superior
liability. Legally, the agent is in effect an extension of the principal; as part of the
same entity, awareness is assumed, just as a natural person is generally assumed to
be aware of and in control of her own extremities.
Of course, even natural persons may sometimes lose awareness or control of their
extremities; criminal law and other areas of law recognize some defenses for
involuntary action. In a sense if the body is no longer part of the person, but acting
according to some other agency, then the consequences of its activity are no longer
Toward an Epistemology of ISP Secondary Liability 439
imputed to the person. So too follows the law of agency; if the employee or other
agent is not acting as an agent, or has some interest adverse to that of the principal,
the principal is not presumed to know of the putative agent’s activity. But
copyright’s secondary liability rules go beyond this, imputing to the indirect
infringer responsibility for the direct infringer’s activity even if the direct infringer is
no longer an agent or is acting adversely to the interests of the indirect infringer. The
logic of this extension has been that the indirect infringer could have or should have
become aware the infringing activity, or at least was in the best position to become
aware of and prevent the infringing activity. Premising liability on the ability to
control infringement creates an incentive—perhaps a burdensome incentive—to
monitor and more closely supervise potentially infringing situations.
An alternative form of secondary liability arises under the rubric of contributory
liability. Here the indirect infringement stems not from supervision or control, but
from either participation in the infringing enterprise, or from supplying the means to
infringe, without actually committing any of the acts prohibited by the exclusive
rights of the copyright owner. Such “aiding and abetting” of infringement might
classically include preparation or support of infringement, such as advertising or
financing unauthorized reproduction and distribution of infringing copies. These
activities are not themselves a violation of any of the copyright holder’s exclusive
rights as designated in the statute. The twin oppositional concerns in penalizing
contributory infringement are to deter intentional furtherance of infringing activity,
while at the same time not penalizing legitimate business activity—the advertiser or
financier of unauthorized copies might be purposely profiting from infringement
without making the copies herself, but might also have been legitimately supplying
services that have been misdirected by the actual infringer.
A more recent development in copyright secondary liability, articulated in the
celebrated Supreme Court’s Sony v. Universal Studios (1984) opinion, is
consideration of the somewhat different “contribution” of supplying the means to
infringe—particularly, contributorily supplying technology, such as a home video
recording system that might be used to directly infringe. But here again, many
technologies have dual uses, some legitimate and unobjectionable while others
further misappropriation of protected content. Consequently, the standard for such
infringement, drawn from parallel doctrines in patent law, holds that supplying a
technology with a substantial non-infringing use, even if it is sometimes abused, is
not an infringement. Like its eponymous cousin in patent law, and unlike vicarious
liability, contributory liability requires some degree of specific knowledge regarding
infringing activity. A generalized knowledge of a particular technology’s potential
for infringement is not sufficient.
Most recently, a third form of secondary liability has been added, denominated
“inducement” in the US Supreme Court’s Grokster opinion (2005). Drawing again
upon patent law, where inducement has long been recognized statutorily as a form of
indirect infringement, the Court held that encouragement or enticement to engage in
directly infringing activity might also secondary liability. Unlike the companion
theories of secondary liability, the inducer need not necessarily have the right and
ability to control the direct infringer, nor, if he is supplying aid to infringement, need
it lack a substantial non-infringing use. However, inducement necessarily involves a
degree of knowledge, and indeed intent to encourage the infringing activity.
440 D.L. Burk
3 Statutory Safe Harbors
The limitations on these forms of secondary liability might be expected to absolve
ISPs from indirect responsibility for copyright infringement. Despite the presence of
infringing activity on ISP systems, the services provided by ISPs certainly have
substantial non-infringing uses, and supervision or oversight of thousands of users
seems impractical. However, a series of ISP liability cases in the 1990s called into
question the responsibility of ISPs to police the infringing activities of their
subscribers (Religious Technology Center v. Netcom 1995; A&M Records. v.
Napster 2001). These decisions relied upon cases finding that the owners of real
property where pirated media was sold at “swap meets” or “flea markets” were
responsible for the infringing activity. (Fonovisa v. Cherry Auction 1996) These
cases found that the proprietors of the flea markets turned a blind eye to
unauthorized sales of music and video media, where the land owners had policed
other activities of vendors at the flea markets. Analogizing ISPs to the owners of real
property, some US district courts held that ISPs might similarly be secondarily liable
if they did not actively police the conduct of users on their systems.
In response to such decisions, ISPs successfully lobbied for passage of statutory
provisions in the Digital Millennium Copyright Act that would provide at least
conditional protection against secondary liability (17 USC §512 2006). The statute
provides legal immunity against secondary liability to ISPs that comply with certain
statutory requirements; most notably, the statute requires that ISPs publicly designate
and provide contact information for an agent who can receive notices from copyright
holders regarding allegedly infringing material (17 USC §512(c)(2) 2006). Various
provisions of the statute address ISP activities that were anticipated to be potential
sources of secondary liability, such as indexing or search services, hypertext linking,
and storage or transmission of infringing content. But immunity does not attach in
cases where the ISP had either knowledge of the infringing activity, or the ability to
control the activity (17 USC §512(c)(1)(A)(iii) 2006).
In creating the statutory safe harbor scheme, Congress did not displace the
common law definitions of secondary liability. (Perfect 10 v. Amazon 2007). ISPs
could be shielded from liability either by complying with the statute or by avoiding
the elements of common law liability. ISPs can rely on the statute and the common
law either concurrently or in the alternative. However, the statute requires that in
order to take advantage of the statutory shield, an ISP either lack knowledge of the
direct infringement, or lack the ability to control direct infringement on which
liability might be predicated. Since lack of these same predicates would negate
common law liability, the knowledge and supervision elements of the statute and the
common law appear to be largely coterminous.
Consequently, a good deal of the extant litigation involving the statutory safe
harbor has focused on the knowledge requirement: when and how an ISP might have
knowledge that might make the safe harbor unavailable. The statute contemplates
two situations in which the knowledge imputed to an ISP might negate the safe
harbor: either actual knowledge or knowledge of facts and circumstances from which
infringing activity is apparent (17 USC §512(c)(1) 2006). The statute does not define
either type of knowledge, although the legislative history suggests that the latter type
of knowledge would arise from “red flags” that would lead a reasonable person
Toward an Epistemology of ISP Secondary Liability 441
operating under similar circumstances to conclude that infringement is occurring
(S. Rep. 105-190, 44 1998).
Most of the judicial opinions generated from disputes over the statutory
knowledge requirements have unfortunately confined themselves to the narrow
issue of statutory notice, that is, actual or constructive knowledge gained by the ISP
as a result of the notification requirements of the statute (Ellison v. Robertson 2004;
ALS v. Remarq 2001). The cases consider when and whether notice of an alleged
infringement to the ISP’s designated agent imbues the ISP with knowledge that would
negate the safe harbor protection, and most especially the adequacy and specificity of
notice under the statute. One court has called the proper delivery of statutorily compliant
notice the strongest evidence of actual knowledge under the statute (Corbis v. Amazon.
com, 2004). Conversely, it declined to hold that notice of infringement by one
copyright owner could create a generalized knowledge of infringement sufficient to
satisfy the knowledge requirement with regard to another copyright owner.
In other words, the “knowledge” required under the actual knowledge provision of
the statute contemplates a high degree of specificity regarding the particular copyright
alleged to be infringed. The same holds true for the constructive or inferred knowledge
provision. One might imagine that the “knowledge of circumstances” provisions would
frequently give rise to the necessary statutory requirement, as a wide variety of
suspicious activity on an ISPs system might inform a reasonable observer of
infringement. However, courts have been reluctant to hold that suspicious situations
or activities could act as so-called “red flags” that should alert ISPs to the presence of
infringing materials or activities (Corbis v. Amazon 2004; Perfect 10 v. CCBill 2007;
UMG v. Veoh 2009).
Consequently there has been little consideration of possible alternative modalities
of actual or constructive knowledge outside direct, statutory notice from a copyright
holder. For example, in the recent dispute between Google and the owners of
copyrighted video materials over the unauthorized uploading of video to the
YouTube site, Viacom and the associated plaintiffs showed evidence that the
founders of YouTube were aware that copyright infringement was likely to occur on
their service (Viacom v. YouTube 2010). The trial court held that such general
knowledge of infringement was insufficient for liability; knowledge of specific
instances of infringing works was required. The court similarly declined to hold that
generalized knowledge could constitute a “red flag” regarding infringement. Yet, the
opinion gives little guidance as to the quality and quantity of information that
will constitute statutory knowledge. Appellate review may give further direction
as to the nature of “knowledge of circumstances” liability, but a comprehensive
framework is lacking.
As in previous “safe harbor” cases, the trial court in the Viacom decision placed
considerable emphasis on YouTube’s reaction to infringing activity once it was given
actual notice of the infringement by the copyright owners. Yet the question of ISP
knowledge under the statute arises not merely when statutory notice is tendered to a
designated representative, but when a given employee has information regarding
copyright infringement on the system, when a message or communication regarding
infringement is resident somewhere in paper or electronic files under the control of
the ISP, or indeed whenever infringing material is itself resident somewhere on the
system. That such information goes regarded or unregarded by any particular
442 D.L. Burk
individual does not seem properly determinative of the quantum of accessible
information that can or should be regarded as rising to the level of legally actionable
knowledge.
4 Statutory Knowledge
Thus, the knowledge requirement in the liability provisions entails a fairly difficult
epistemological problem. This begins with certain issues of legal epistemology. Law
is often occasioned on the knowledge or other mental state of those to whom it
applies; although the law sometimes imposes strict liability for violations of its
formal strictures, more often some degree of pertinent knowledge or intent is
required for legal liability to attach. Culpable mental states range from negligence,
where fault attaches to unexcused lack of consideration, to intentional activity, where
some type of directed, willful volition is required. From a utilitarian standpoint, such
scienter requirements calibrate liability to the actor’s ability to acquire, comprehend,
and act upon socially relevant information; from a deontological standpoint, scienter
attempts to calibrate liability to the actor’s moral culpability. Anglo-American
criminal law is particularly rich in commentary exploring the problems created by
this system.
Knowledge and information are typically distinguished in epistemological
discussions; often information is regarded as prerequisite to knowledge, but the
latter is viewed as requiring some additional degree of cognition, application,
contemplation, or awareness beyond the simple provision of information. Without
detouring into that long and often tangled discussion, we can say that the legal
terminology of the statutes under consideration is roughly commensurate with this
type of analytical distinction. The meaning given to the language of any particular
statute is a product of the intent of the legislature enacting it and of the adjudicator
parsing it, but certain terms have become relatively standard, including those
indicating a culpable mental state. Statutory provisions that involve “knowledge” or
acting “knowingly” as the legal requirements for mental state generally contemplate
not merely possession of information, but awareness or appreciation of the
information.
Among the well-known problems associated with legally requisite mental states is
the simple determination of the presence or absence of scienter. Determining the
knowledge or intent of a natural person can be challenging as a practical matter. It is
essentially impossible to gather direct evidence as to the individual’s state of mind.
Even advances in neuroscience, such as MRI scanning, that have sometimes been
touted as direct evidence of culpable mental states in fact offer only indicia of
thought processes—the chemical traces of cognition—not direct evidence of thought
itself (Brown and Murphy 2010).
Since, absent the discovery of some telepathic or mind reading technique, no
direct evidence of knowledge or intent in another’s mind is possible, legal
institutions proceed much as the common practice of humankind proceeds, drawing
inferences from outward manifestations of utterances, actions, and writings. Legal
standards typically take account of these various forms of indirect evidence from
which knowledge or intent can be inferred. While there of course remain epistemic
Toward an Epistemology of ISP Secondary Liability 443
problems with this approach, they are familiar problems, and we have at least a
working understanding of what it means for an individual to have knowledge,
awareness, and volition, and thus to be held to some standard of legal responsibility.
Assessing the state of mind of a natural person under the law is an exercise that is, if
not straightforward, at least relatively well-defined.
Consequently, the logic and implications of a secondary liability knowledge
requirement seem fairly manageable when the subject of the statutory provision is a
natural person, as for instance in the classic case of the dance hall owners, mentioned
above. The individual who engaged the musicians either had actual knowledge of
the infringing music the musicians were playing, or was in the best position to gain
actual knowledge of what was being played, and so constructive knowledge of the
infringement was imputed to the employer. A similar logic might apply if an ISP is a
sole proprietorships, where a natural person effectively is the ISP. The dance hall
logic may not “scale” well, as managing the thousands of participants on an Internet
system is far more resource intensive than overseeing a dance band, but the problem
of how to assess the mental state of the proprietor does not change.
But I assume here that the all or most ISPs will be organized in the corporate form—it
is certainly possible that an ISP could be organized as some other legal entity, as a
partnership or a sole proprietorship, but business exigency is likely to push ISPs, like
other business entities, towards incorporation. And this organizational form drastically
changes the calculus of secondary liability—or for that matter, of any liability.
Legally, the corporation constitutes a person—not a natural person, but a juridical
person (Ripken 2009; Dewey 1926). This is a legal fiction intended to facilitate
certain business and policy goals, most particularly to separate the personal assets of
individuals who invest in the corporation from the assets, held by the corporation,
that are to be placed at risk for business purposes. As a person under the law,
corporations are accorded many of the same benefits and responsibilities associated
with natural persons. Corporations may acquire, possess, and alienate property—
indeed this is one of their main purposes for existence. Corporations may be
criminally or civilly liable for their activities, or for activities conducted in their
name or under their authority. Corporations even have been accorded certain
“human” rights that might be thought of as constitutive of personhood, such as a
right to expression or freedom of speech, and a right to due process of law.
However, as non-human entities, corporations also differ from natural persons in
certain important attributes. Perhaps most significantly, corporations are effectively
immortal—they do not die from natural cause or injury, and only cease existence
when their legal recognition is dissolved. Corporations also lack a discrete physical
situs for their instantiation. Typically some jurisdiction is designated as the place
where the corporation legally “resides,” but this may be an entirely separate
designation from where the corporation’s headquarters, facilities, personnel, or major
assets are actually to be found. The individuals and objects that comprise the
characteristics of the corporation may be widely, even globally dispersed, giving the
corporation the odd quality of being simultaneously everywhere and nowhere.
Thus, a statutory requirement that a corporation possess “knowledge” leaves a
puzzle, or perhaps a contradiction, that the corporation has no discrete instantiation
to which such benefits and responsibilities might attach, or to which punishments
and penalties might be applied. The corporation cannot lose its freedom by
444 D.L. Burk
confinement to prison. Similarly, although the corporation can be fined, or penalized
through forfeiture of property, it is not cognizant of the loss. Corporations may be
criminally liable for activity ascribed to them, but there is no capital punishment for
their misdeeds—the corporation may be legally dissolved, and go out of existence,
but it has no way to contemplate or to fear such a penalty.
As a consequence, corporate deterrence must be derivative or indirect. The
corporation cannot be directly encouraged or deterred from particular actions; rather,
modifications in behavior must be directed at the humans who make up the corporate
association. These individuals may also sometimes be legally liable in their personal
capacity, but such responsibility is considered a separate matter from the liability of
the firm they represent. Often the knowledge and actions of corporate employees
will give rise to both personal liability and corporate liability; the same activity may
trigger liability for each. But corporate employees may be liable in their in individual
capacities for the actions that arise from their knowledge, even in cases where the
same activity does not give rise to corporate liability (Langevoort 2006). And,
conversely, the corporation may be separately liable for legal violations based on
such activity, even in cases where the employees are not.
Additionally, the corporation may of course be responsible for the knowledge and
activities of its officers, directors, or other employees, under a theory of respondeat
superior. The activity of employees or other agents may be imputed to the principal
as its own. But this is a version of the vicarious liability theory mentioned
previously; no actual knowledge of the activity is necessary on the part of the
corporation, as the servants of the corporation are considered to be in some sense
extensions of their master.
5 Aggregate Knowledge
A much more difficult and distinguishably separate question is presented when the
knowledge and activities of the officers, directors, or employees of the corporation is
considered as indicative of the knowledge of the corporation itself. In its simplest
form, the knowledge of a corporate agent and the knowledge of the corporation may
be coterminous: if a given, single agent possesses legally requisite knowledge, then
what that given agent knows is what the corporation knows. The problem becomes
more difficult when the knowledge is distributed and no given agent possesses
enough accessible, operative information to individually possess legally requisite
knowledge. But the corporation is not coterminous with a given agent, and it may
nonetheless be the case that if partial knowledge from several agents were
aggregated and attributed to the corporation, that the corporation could be said to
possess knowledge that no single corporate agent possesses.
Indeed, this problem might be taken one step further to include the informational
content of non-human as well as human corporate constituents. The corporation
might be said in some senses to consist of the tangible and intangible assets that
constitute its holdings: equipment, land, securities, cash, buildings, trademarks,
paperclips, vehicles. To the extent that the corporation is defined by its assets and
holdings, the data storage chattels within the control of the organization may form an
additional repository of information that could be added to the tally of aggregate
Toward an Epistemology of ISP Secondary Liability 445
knowledge. And this is in fact the problem scenario that presents itself most often in
the case of ISP liability, where some type of infringing data or information exists on
the ISP network, and some human agent is actually or potentially aware of its
presence in such a way that the aggregation of human and non-human status adds up
to corporate knowledge.
The information content of such an organization is a study in complex
sociotechnical relationships. Some information will reside in technical artifacts,
such as documents, computer media, or even the arrangement of furniture and
partitions within the spaces where corporate workers conduct their business. Other
information will reside in the memories of individual workers within the
organization. A further dimension of organizational information will reside in the
social structure of relationships between workers. These repositories are porous and
somewhat fluid, so that information may migrate between silicon memory, cellulose
inscription, and carbon memory; or become reflected and reinforced in overlapping
instantiations among artifacts, relationships, and individuals.
Consequently, although some corporate knowledge may be formally codified as
print text, or sequences of bits, much of the knowledge held by an organization will
be tacit knowledge that goes uncodified, and is carried as electrochemical potentials
in the brains of the personnel who make up the organization (Burk 2008; Gorga and
Halberstam 2007). The corporate organizational structure itself may be yet another
repository of tacit knowledge, as may the organization of physical spaces controlled
by the firm, or the arrangement of equipment, furniture, and other objects within the
firm’s physical environs. Legal imperatives are integral to this knowledge
architecture; facilitating certain organizational arrangements, channeling information
into codified or tacit repositories, and prompting the acquisition or divestiture of
informational resources.
In a similar vein, if we were to take a page from Actor Network Theory, we might
describe the corporation as a network of physical and human resources that in
becoming legally reified as a juridical “person” has effectively been transformed into
a sociotechnical “black box” (Law 1992). Complex interactions occur within the
boundaries of the box, but the law largely regards it as a discrete, monolithic entity,
as for example in requiring it to have “knowledge” under certain statutory
provisions. However, assessing knowledge typically requires us to look inside the
box at the activities, status, and interactions of the network—we look at the e-mail or
memoranda that circulate within the corporation, or at the statements or actions of
personnel who populate the corporation. These are human and non-human actants
that comprise the corporation, but it is the relationships between them that constitute
the entity we call the corporation, and that determine the state of knowledge within
that entity.
The same might of course be said of natural persons, but in the case of humans, the
box tends to be far more tightly closed. We have already observed that tracing the
interactive relationships between components of the brain yields only the inference of
thought, and such scrutiny of a natural person is the exception rather than the rule. The
constitutive network of components that comprises the individual tends to be the
subjects of physical and physiological scrutiny, rather than social and legal scrutiny.
While we may sometimes infer the knowledge or intent of a natural person from the
disposition of their legal relationships—the state of items or resources under their
446 D.L. Burk
control, the authoritative statements from social institutions about their status—we
typically do not think of the natural person as constituted of components that entail their
own legal and moral agency. It is the corporate juridical person that typically invites
informational scrutiny via decomposition into its discrete elements.
Certain dimensions of this problem are already well known. It is reflected in legal
precedent involving analog storage of information, in media owned or controlled by
a corporate entity. For example, in the landmark decision Smith v. California (1959),
the US Supreme Court held that the burden of legally requiring a decompositional
examination was incompatible with the goal of free speech under the First
Amendment to the Constitution. In that case, a bookseller had been criminally
charged with possessing as part of his sales stock a book that was deemed obscene;
the store owner was unaware of the offensive nature of the book until it was called to
his attention by local law enforcement officials. The Court held that the bookseller
could not be charged with an obscenity violation for merely possessing illegal
materials somewhere among his business assets; until he as a natural person knew or
had reason to of the nature of the printed material, he was not responsible for the
informational content. To hold otherwise, the Court reasoned, would impose on the
distributors and sellers of print media the burden of searching a large volume of
printed information for obscenity, which would impeded the free flow of information
protected under the Constitution.
This rationale could similarly apply in the case of ISP liability; in the case of
secondary copyright liability, it has been suggested that the burden of monitoring
network content constitutes a burden on conduits of speech comparable to the
burden found impermissible in Smith v. California (Yen 2009; Tushnet 2009). This
argument seems doctrinally sound, and underscores one practical difference between
corporate and individual knowledge; the composition of knowledge within a
corporate entity entails a burden of introspection not typically associated with
natural individuals. But it also highlights key differences between two types of
information storage within the corporation—that instantiated via inanimate objects
and that instantiated in human grey matter—and how the legal liability for
knowledge need not be coterminous with its repository. While recognizing the
difference, the doctrine leaves us with no general rule as to how and when such
repositories might either together or separately constitute corporate “knowledge.”
6 Alternative Examples
This problem of corporate knowledge is of course by no means confined to the legal
requirements for Internet Service Providers or to the field of intellectual property; the
problem is far broader and deeper than that. Legal responsibility, and hence potential
liability, for corporate entities arises in myriad contexts, including activities that are
regulated under environmental law, employment law, various areas of commercial
and business law, personal injury, and even criminal law. Many statutes in these and
other areas articulate a standard of knowledge, or intent, or other mental state in
order to be applicable. Although some statutes are written with corporations in mind,
often the statutes apply to both natural and juridical persons. The ISP liability
provisions are fairly typical in this respect.
Toward an Epistemology of ISP Secondary Liability 447
If the DMCA safe harbor provisions are unexceptional in requiring a corporation
to have knowledge in order to trigger a statutory provision, then the lack of judicial
scrutiny of this particular requirement might seem to be less of an issue. Many
statutes incorporate a knowledge provision; all such knowledge provisions entail
some conception of corporate knowledge. The solutions reached under those
provisions might at least inform, and perhaps be entirely grafted onto the DMCA
safe harbor analysis. Thus, one might anticipate simply applying to the ISP liability
statute the standards or methodology common to many other such statutes, and
reaching a result that indicates what “knowledge” might mean in the context of the
specific statute under consideration.
But, surprisingly, little or no consideration has been given to this problem in the
context of any statute. Although there was some dispute at the beginning of the 20th
century over whether a corporation could have a separate personality, or was merely
the aggregation of individual personalities, that discussion largely disappeared
without resolution (Ripken 2009; Dewey 1926). Instead, the law has as a practical
matter assumed that corporate knowledge must be imputed to the corporate entity
from the knowledge held by its officers and agents (Mizzaro v. Home Depot 2008;
Apollo Fuel Oil v. United States 1999). Knowledge of a corporate employee is not
necessarily imputed to the corporation; rather a legally recognized agency
relationship is required (Fletcher Cyclopedia §789 2011). Such relationships arise
where the agent has authority to contractually bind the corporation; mere employment
by the corporation is not enough. Any knowledge imputed to the corporation from the
agent must be obtained both within the scope of the agency, and in instances where the
agent is acting as an agent (United States v. Josleyn 2000).
Much of the reasoning behind imputing an agent’s personal knowledge to the
corporate entity is based on the fiction that, because agents have a duty to inform their
principal of information obtained while acting as an agent, the agent would “inform” the
corporation of such knowledge (Fletcher Cyclopedia §793 2011). Conversely, courts
cannot impute to the corporation knowledge outside the scope or activity of the agency
because they cannot presume the agent would inform the corporation of such
information. Casually acquired information may be imputed to the corporation if
obtained in close temporal or substantive proximity to the agent’s area of authority, on
the theory that the agent would remember it when returning to the agency (Fletcher
Cyclopedia §791 2011). However, when a third party explicitly provides an agent with
information, even if the agent is not acting as an agent in the area to which the
information pertains, courts may impute such information to the corporation.
This conceptual separation of agent and principal is pervasive in the law of
corporate scienter. In a similar vein, where the agent with knowledge has an adverse
interest to that of the corporation, the agent’s personal knowledge is not imputed to
the corporation, on the rationale that a court can no longer presume that an agent will
communicate information to the principal when its interests are adverse to that of the
principal (Fletcher Cyclopedia §790 2011). But courts have recognized an exception
to this rule when the agent has sole responsibility for a particular matter. In such
instances the fiction breaks down; even if the agent’s interests are adverse to that of
the corporation, when the agent is solely responsible for a transaction on behalf of
the corporation, the agent is in effect the principal, and so unaccountable to anyone
else (Fletcher Cyclopedia §827 2011).
448 D.L. Burk
Some movement toward a truly corporate notion of corporate knowledge emerges
from examination of recent cases under the Private Securities Litigation Reform Act.
This statute governs procedures for corporate shareholders to bring class actions under
federal laws prohibiting corporate fraud (17 C.F.R. §240.10b-5 2010; 15 U.S.C. §78j
2006). The underlying corporate fraud statutes prohibit corporations from attracting
investment by making a misleading statement or omission of fact. The misrepresentation
must be accompanied by scienter, by a state of mind that includes knowledge
that the act or omission was misleading (15 U.S.C. §78u-4(b) 2006). Typically,
congruent with the general rules of corporate knowledge described above, courts have
required that plaintiffs pleading such cases show that a particular individual, acting as
a corporate agent has made the statement or omission with the requisite scienter.
However, courts have in some cases recognized or adopted a theory of collective
knowledge that aggregates acts and knowledge from different corporate actors, and
imputes this combined status to the corporation. For example, where corporate
spokespersons assert that the company’s product is safe, and the CEO of the
corporation knows that the product is unsafe, even though the CEO made none of
the statements about safety, the statements by one corporate agent may be combined
with the knowledge held by the CEO to meet the requirements of the statute (City of
Monroe Employees Ret. Sys. v. Bridgestone 2005). Similarly, certain courts have
allowed “group pleading” in such fraud cases, whereby statements made on behalf of
the corporation need not be identified with particular natural persons, but rather may
be considered an act of the corporate entity (Wool v. Tandem Computers 1987).
This stance is controversial, and some courts have rejected it outright in favor of
the familiar rule that only natural persons can have a state of mind, even if that state
of mind is imputed to the corporation they represent (Southland Sec. Corp. v.
INSpire Ins. Solutions 2004). Several other courts have held the door open for
aggregate action and corporate scienter, holding that such collective status is in
theory permissible, even if not satisfied in the immediate case before them (Makor
Issues & Rights v. Tellabs 2008; Glazer Capital Mgmt v. Magistri 2008). This
recognition of the potential for corporate scienter, together with the few cases
actually adopting the rule suggest that the law may be evolving toward recognition
of something like corporate knowledge. But there is as yet no underlying theory of
how such knowledge exists, and where it resides, let alone how to recognize it, that
might guide the development of such law.
7 Defining a Framework
Before the law can properly account for the “knowledge” of an ISP regarding the
potentially infringing activity of its subscribers or users, there needs to be some more
general understanding of corporate knowledge. The cases regarding private
securities litigation suggest that the courts in that area are groping toward some
concept of aggregate or communal knowledge, but there remains a deficiency of
guiding principles or framework to facilitate such a project. Consequently, I suggest
here two existing frameworks that seem to me promising in their potential for
delineating the corporate boundary and the relationship of information within that
boundary to the “knowledge” state of the corporation. These seem to me to offer the
Toward an Epistemology of ISP Secondary Liability 449
potential for a conceptual foundation upon which a coherent legal doctrinal structure
might be erected.
The first of these approaches arises out of the thinking of John Searle, who in his
recent work has begun examining the nature of social concepts and institutions,
including the nature of the corporation. Searle has spent a good part of his career
expanding and refining the theory of illocutionary or performative statements first
articulated by Austin. Most recently, Searle argues, not surprisingly, that reified
social concepts such as money, marriage, or a corporation, are brought into being
and given form as speech acts (Searle 1995, 2010). Searle suggests that corporations
and similar social structures take their social substance from performatives of the
category that he has labeled the declaration. That is to say, a declaration in the form
of a charter or articles of incorporation, asserting that a corporation now exists,
imposes a certain status function on a collection of people and assets, where no such
status existed before.
According to Searle, declarative speech acts impose a type of collective
recognition of status on a collection of people and objects, such as those that
comprise a corporation (Searle 2010). This recognition confers on the collection of
items a social status that it would not otherwise have by virtue of their items’
physical properties. Emerging out of a collective intention to recognize the formation
of a new social entity, such a status state entails a collection of rights,
responsibilities, and entitlements that define character of the social entity. In the
case of the corporation, such “deontic powers” include the trappings of legal
personification discussed above.
Searle has been criticized, perhaps justifiably, for seeing speech acts in almost
every conceivable human interaction—not only utterances and symbolic indicia but
gestures, motions, and other intentional actions have some semantic content, and so
seem to qualify as performative in some sense (McGinn 1997). The underlying
complaint is a failure to credibly distinguish a speech act from any other type of act
that may be intentional, but not necessary illocutionary, or even communicative.
Searle’s articulation of speech act theory seems to lack a robust definition of its
central principle that would allow us to determine exactly when the semantic content
of a particular action distinguishes it from routine or non-performative acts. Searle’s
approach, in other words, consistently seems to prove too much.
But even if Searle has sometimes overstated the case for the provenance of
speech acts, this does not negate the case for considering his framework where
plausible, under better-defined circumstances, and, in particular, for considering
his argument in the case of corporate definition. Certainly, a charter or articles
of incorporation implement a collective recognition of status for the elements of
a corporate entity. Perhaps more importantly, the subsequent actions of
individuals representing and treating with the corporation might be said to
entail semantic content that asserts or at least assumes that a corporation exists
with certain attributes, including certain informational content. The knowledge
content of employee performatives could be considered indicative, or even
definitive, of corporate knowledge, particularly when such activity is considered
in the aggregate. Indeed, the courts considering statements and actions of
corporate employees in the securities cases reviewed above appear to be
groping their way toward just such a distinction.
450 D.L. Burk
This suggests that the concept of corporate performativity may be best viewed
from the bottom up, beginning at the stratum of individual agent’s performances.
Like a fractal pattern that displays the same repeated configuration at increasingly
fine levels of resolution, the corporate entity may be comprised not merely of a
grand, definitive speech act at the macro level—that is to say, by the articles of
incorporation or other declaration that brings the organization into legal existence—
but comprised of speech acts at the micro level. In other words, the fiber of the
corporation may be comprised of myriad accumulated actions from which one can
determine, either directly or indirectly, the information content of the corporate
entity. Searle may offer a framework that allows us to define an organization as a
composite performative object; once we know the character of such an object, we
can begin to recognize its boundaries.
A second, and perhaps even more promising avenue of research may lie in the
application of information ethics to the question of corporate epistemology.
Information ethics as a school of philosophical thought arises largely out of the
work of Luciano Floridi, his collaborators, adherents, and critics. Under this
framework, the world is considered in terms of its informational content; the totality
of existence is contemplated as a combination of informational objects or processes
(Floridi 1999). Objects, whether material or immaterial, are viewed as data clusters
operating within an information environment, or infosphere, behaving, reacting, and
interacting with other stimuli from the environment or from other informational
objects. The informational content of an object defines its state, including its identity
and its attributes. Such attributes may a range of functions including moral agency.
This view of informational agents within an informational environment presents a
promising approach to the present problem in part because its proponents have
explicitly contemplated application of the framework to non-human entities.
Information ethics thus constitutes a broadly applicable framework for agency and
responsibility (Floridi and Sanders 2004). When described informationally, the class
of active and moral agents need not be confined to human agents, or even to living
systems. Important to the program suggested here, Floridi has argued that
corporations and other organizations may constitute information agents within the
infosphere, although this aspect of the framework remains largely nascent or
unrealized (Floridi 1999).
However, the challenge is not simply to explain the agency of the corporate entity.
Under the law, the corporation functions not merely an agent, but as a juridical
person. Some have supposed that the application of information ethics to non-human
persons must await the advent of strong AI or other autonomous artificial entities,
but the corporation immediately presents an example of a non-human, juridical
person that begs for application here and now. Indeed, as suggested by the
discussion of agency above, corporate entities pose a possibly counter-intuitive
situation; rather than non-human agents such as robots or software agents, acting in
the service of humans, corporate agency assumes human agents acting in the service of
a non-human entity—the corporation.
What I have outlined here suggest that the tenets of information ethics may be
applicable at several levels to resolve conceptual problems I have suggested above.
Considering the corporation as an informational agent may allow us to address the
first fundamental problem of corporate knowledge by defining the informational
Toward an Epistemology of ISP Secondary Liability 451
boundary of the corporation. In order to do so it will be necessary to give an account
of information objects wherein some information constitutes the entity, and other
information is processed, contemplated, or “known” by the entity. Some information
comprising an information object, including informational agents, will be status
information that defines the character and structure of the object—the spin of
electrons, the bonding of molecules, the encoded information of DNA, the structural
folding of proteins, the density of bone mineral, the signaling of autonomic neurons.
In the case of sentient agents, other information will be cognizably accessible for
action or contemplation. A key component of such the program I suggest will be
developing a framework to differentiate such information.
Collective entities, such as an organization or corporation, present a special
configuration of status and cognizable information, as some cognizable information,
such as that held by a given employee, will be accessible by the sentient components
of the entity, but not necessarily by all sentient components of the entity. Other
information that comprises corporate status information, particularly uncodified
information, may be either inaccessible or unaccessed by the sentient components of
the entity. The accessibility of status and cognizable information and should
determine the entity’s knowledge state at any given time, as for example when
information regarding copyright infringement is resident on an ISP’s system. A
methodology for assessing the knowledge status of an organization at such moments
would provide a foundation to build on in order to develop legal theories of agency
and, ultimately, liability.
8 Conclusions
As matters stand now, Anglo-American law provides little in the way of a conceptual
framework for addressing its own doctrinal requirements for corporate knowledge.
Even without such a framework, courts can and do muddle along, applying
knowledge-based statutory provisions of the DMCA to the situations before them.
But this leaves ISPs in substantial uncertainty as to when and whether information
regarding copyright infringement will rise to the level of “knowledge” under either
the statutory safe harbor provisions or the common law definitions of secondary
liability.
As I indicated at the outset of this essay, I have focused on one American statute
as emblematic of the problem. But the difficulty I have identified is neither
geographically nor substantively isolated. ISP responsibility based on imputation of
corporate knowledge extends beyond copyright liability, not only to other forms of
intellectual property infringement, such as trademark and counterfeit goods, but to
liability for violations of privacy, hate speech, and defamation. Given the global
nature of ISP operation, liability in these many substantive areas may lie under the
law of multiple jurisdictions.
To choose only one recent, prominent example, Google executives were
recently held criminally liable for privacy violations due to a video, uploaded to
YouTube, depicting harassment of an autistic school child (Sartor and de
Azevedo Cunha 2010). Certainly, the three executives being held criminally liable had
no actual awareness of the video; neither did the employees responsible for removal of
452 D.L. Burk
the video have actual knowledge of its presence until Italian police requested it be taken
down, which occurred within a few hours of the notice. The thus case hinges on how
much knowledge or awareness regarding the video is ascribed to the corporation—and,
by imputation, to its officers—in the weeks between upload and notification.
A conceptual framework of corporate epistemology such as that suggested here
could be applied not merely in the copyright context, or in the American context, but
as a foundation toward resolution of a variety of international situations, such as the
Italian privacy case. Application of the framework in any given jurisdiction will
require doctrinal development regarding the indicia of corporate knowledge: burdens
of proof, standards of admissibility, and the like. But courts are equipped and
accustomed to developing such implementations once they have the framework, and
I hope here to have enabled the first steps toward such a framework. Although we
cannot expect to shoehorn a comprehensive theory of corporate epistemology into a
brief article such as this one, I hope to have fairly laid out the problem and charted
some tentative course toward a solution. That beginning will perhaps provide both a
basis and some impetus toward further work defining ISP responsibility in situations
of copyright infringement and beyond.
Acknowledgments The author wishes to thank James Chang for helpful research assistance and two
anonymous reviewers for helpful remarks.
Open Access This article is distributed under the terms of the Creative Commons Attribution
Noncommercial License which permits any noncommercial use, distribution, and reproduction in any
medium, provided the original author(s) and source are credited.
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