Remedies first, liability second: or why we fail to agree on optimal design of intermediary liability

This chapter discusses remedies for online intermediary liability with special emphasis on remedies for intellectual property (IP) infringement. The chapter describes damages and injunctions, their scope and goal, while also analysing the costs of these remedies. In particular, this chapter highlights how IP scholars in the area of intermediary liability have now spent over two decades trying to answer when an intermediary should be liable for its users’ actions. What if throughout that time too much emphasis had been placed on the second-order issue of optimal design? Can that question be answered without first knowing what an intermediary is or should be obliged to perform as a consequence of such legal qualification? This chapter argues that policy debates concerning optimal design of intermediary liability should reflect an inverse order of inquiry in order to elicit useful insights.