We already noted that the Supreme Court has refused to hear Whitney Harper's innocent infringer
case, but in a bit of better news, the Supreme Court has also decided not to hear Tiffany's appeal against eBay
, concerning whether or not eBay was guilty of secondary trademark infringement in allowing counterfeit Tiffany goods to be sold on the site. The appeals court pointed out this made no sense
, so it's good to hear that the Supreme Court won't upset that ruling -- especially since that ruling has been a key part of the Viacom/YouTube case, in showing that secondary liability shouldn't automatically be applied to third parties, even in the potential absence of legislative safe harbors. One of the concerns with various safe harbors that protect third parties from actions of their users is the implication that without those safe harbors, third parties are automatically liable. Yet, as the Tiffany case showed, some common sense should be applied. Third parties shouldn't be liable for actions of their users unless there's significant involvement by the third party in the infringement.