The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. The Supreme Court in Grokster suggested such resistance, by limiting the Sony safe harbor to defendants with squeaky-clean intentions. In the trademark context, recent decisions have shown great solicitude toward good-faith actors, while reserving the option to condemn those who act with the apparent design to sow confusion. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. The former group faces almost certain liability, while the latter receives broad immunity, even when its services facilitate widespread infringement. The Sony safe harbor and its trademark analog, in other words, are available only to intermediaries that appear to be acting in good faith and with ultimately non-infringing objectives.
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