A few weeks ago, I posted about whether credit card providers should be liable for knowingly facilitating sales of infringing materials. A Ninth Circuit decision said that this did not constitute contributory infringement; Judge Kozinski dissented, saying it did, and I generally endorsed his position, at least as a matter of current law.
Many commenters disagreed, making various arguments. Among other things, they argued that we shouldn’t “in effect, force credit card companies to become copyright police … who have an affirmative duty to expend massive resources surfing the web verifying complaints of copyright infringement”; that the law shouldn’t take the view that “preventing infringement should be a primary concern for all unrelated businesses”; that such contributory liability shouldn’t exist at least until there’s a judicial finding that the recipient of the money is indeed an infringer; and that the credit card companies shouldn’t be liable unless they know that the specific transaction they’re facilitating is infringing (as opposed to just that the target site is engaged in massive infringement).
These are all plausible arguments, but I wanted to revisit the question by asking a broader question: When should someone be held legally liable for helping others commit crimes or torts? In criminal law, the question is when someone should be guilty of the crimes of “aiding and abetting” or (in some jurisdictions) “criminal facilitation.” In tort law, the question is when someone should be liable as an accessory; contributory copyright infringement law is in large measure the application of this general tort law principle.
The theory is that at some point helping someone commit a wrong — especially a wrong to an identifiable innocent third party — is itself the commission of a wrong. By threatening to hold you liable we aren’t asking you to become the “police,” in the sense of someone who is expected to actively try to catch wrongdoers. Rather, we’re asking you not to participate in others’ wrongdoing. The question is when this is a reasonable demand.
1. Majority criminal law view: Oddly enough, the matter is not fully settled even as to criminal law. The dominant view seems to be that you are liable as an aider or abetter if you (here I quote the Model Penal Code, which isn’t far from the majority rule on this point) solicit, aid, agree, or attempt to aid another in committing a crime, with the purpose — the “conscious object” — of promoting the crime. This means that if you give a gun, a knife, gasoline, a rope, or whatever else to a criminal with the purpose of helping him commit a crime with the gun, you’re committing a crime. But if you simply know that he will likely commit a crime, but don’t have the conscious object of helping him (perhaps, for instance, you’re selling the goods just like you’d sell them to anyone else, with the sole object of making money from the sale), then you’re not guilty.
2. Minority criminal law view: But quite a few jurisdictions do allow punishment even if you merely know that you’re helping someone commit a crime, or even if you know that there’s a high probability you’re helping someone commit a crime. Some jurisdictions do this for all serious crimes, others just for some crimes; and some treat this as aiding and abetting, punishable the same way the aided crime is punished, while others impose a lower sentence. For instance, consider New York Penal Law § 115.00: “A person is guilty of criminal facilitation in the fourth degree [a class A misdemeanor] when, believing it probable that he is rendering aid … to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.” Or consider Indiana Code Ann.