Abstract

Accidental infringement of copyright is a pervasive and largely ignored problem. In the twenty-first century, it has become increasingly easy to infringe copyright unintentionally. When such accidental infringement occurs, copyright law holds the user strictly liable. Prior literature has questioned whether the strict liability standard is normatively defensible. In particular, prior literature has asked whether the strict liability standard ought to be reformed for economic reasons.
 This Article examines the accidental infringement problem from a new perspective. It considers whether it is fair to hold copyright users strictly liable for accidental infringements of copyright. This Article argues that the strict liability standard is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible. Using the moral philosophy literature on responsibility, this Article explores our intuitions surrounding copyright’s liability standard in order to better understand why strict liability in this context seems “harsh” and “inequitable.” In turn, this provides an argument for reforming copyright’s liability rule and adopting a negligence standard. This Article then argues that, within the United States, the proposed reform to copyright’s liability rule should be accomplished by modifications to the existing fair use doctrine.

Highlights

  • Accidental infringement of copyright is a pervasive and largely ignored problem

  • Drawing on Guido Calabresi’s famous work, The Costs of Accidents, we argued that holding copyright users strictly liable for accidental infringement is economically inefficient.[15]

  • I make an argument that strict liability is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible

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Summary

CONSIDERING COPYRIGHT ACCIDENT CASE LAW

Accidents are an ever-present feature of modern life. Frequently, we engage in beneficial activities which, as a byproduct, pose a risk of harm to others around us. The defendant may be aware of the copying of the original work but erroneously believe a third party’s representation as to the legal status of the work or the third party’s right to authorize the use Such cases form the classic problem of a legal triangle,[30] wherein the liability of the party who is directly at fault, having caused the legal accident, is not a substantive part of the legal dispute between the plaintiff and defendant.[31] The law has to decide on whom the harm will fall as between two innocents. This is another piece of evidence that suggests the court was motivated by a sense that there was something unfair in holding Google liable in Field, and may even suggest that the court recognized an unfairness in the underlying liability architecture of copyright law

LITERATURE REVIEW
MORAL RESPONSIBILITY AND COPYRIGHT INFRINGMENT
MORAL CULPABILITY AND BLAMEWORTHINESS
CAUSATION AND ITS ROLE IN DETERMINING MORAL RESPONSIBILITY
DEGREE OF CONTROL
COUNTER-ARGUMENTS
COPYRIGHT AS A PROPERTY RIGHT
CHANGES TO THE REMEDIES AVAILABLE FOR INFRINGEMENT
CONSEQUENTIALISM AND COPYRIGHT INFRINGEMENT
REFORMING COPYRIGHT’S STRICT LIABILITY STANDARD
CONCLUSION
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