Vanderbilt Law Review

Article Title

Causing Infringement

First Page



In its most recent contributory infringement pronouncement, the Supreme Court advised courts wrestling with these issues to consult tort law's own contributory liability framework, which it described as "well established."31 The conventional wisdom among legal scholars agrees with the Court. Most scholarship in this area contends that obeisance to traditional tort law principles of contributory liability will fill the void in infringement law with answers that are adequately calibrated to the balance between incentivizing creation and permitting downstream use. This Article challenges that conventional wisdom. Although we agree that tort law can shed some much-needed light on contributory infringement, we think that both the Court and most commentators have dramatically overstated tort law's precedential value in this context. The law of tortious contributory liability is much more ambiguous and complex than recent judicial opinions and legal commentary have indicated. A judge deciding an infringement case via tort law faces a bewildering array of conflicting legal principles. Moreover, some of these principles, if employed in the intellectual property context, would threaten intellectual property law's goal of spurring technological innovation. Hence, it is not enough to urge the courts to apply traditional tort law doctrine in the context of intellectual property.