Infringing Information Architectures

Information architectures—systems that facilitate storing and sharing data and content—underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. Since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers and users directly infringe others’ copyrights. Almost fifty years ago, however, a largely unexplored paradigm shift occurred. Copyright owners started to allege that information architecture providers should be broadly secondarily liable for all their users’ infringements. These claims, which this Article terms architectural infringement claims, pose an acute challenge to the balance copyright law strives to achieve between protecting authors’ rights and providing access to their works. Overbroad protection and up to $150,000 per infringement in damages risks stymying innovation while reduced rights threaten copyright’s incentive to create. Scholars have recognized this challenge in individual cases but have not identified the overarching challenges of architectural infringement claims or offered a framework for addressing them. By examining architectural infringement claims systematically for the first time, this Article surfaces courts and Congress’ use of intent as a hidden polestar for refining copyright secondary liability doctrine in response to these claims. Here, intent refers to an actor’s action or inaction, once aware of a particular alleged infringement, that is substantially certain to facilitate or further the infringement. This covered framework can help improve the evolution of copyright law in response to architectural infringement claims against emerging information architectures, such as generative AI and blockchain. As technologies continue to develop at a breakneck pace, intent-based refinements to secondary liability provide an additional path toward an innovation-promoting, copyright-respectful future.