Patrick Russell Goold, ‘Is Copyright Infringement a Strict Liability Tort?’

Scholars and lawmakers routinely refer to copyright infringement as a strict liability tort. This adoption of strict liability has long been criticized as immoral, inefficient and inconsistent with usual tort doctrine. However, this article questions whether copyright infringement really is a strict liability tort. It advances the thesis that copyright infringement in the USA is a fault based tort, closely related to the tort of negligence. Using both doctrinal and economic methods, this article explicates the role that fault plays in copyright infringement. Doing so not only demonstrates that copyright’s liability rule is more normatively defensible than previously appreciated, but also provides a unique tort perspective on the nature of the fair use doctrine. By seriously engaging with the analytic question of whether liability for copyright infringement is strict or not, we highlight how the fair use analysis blends and confuses two separate issues: did the defendant cause the plaintiff harm, and, was that harm justifiable. Therefore, while no substantive changes need be made to copyright’s liability rule, the article concludes that judges ought to restructure the fair use analysis in order to keep these concepts distinct from one another.

Goold, Patrick Russell, Is Copyright Infringement a Strict Liability Tort? (December 8, 2014). Berkeley Technology Law Journal, 2015 Forthcoming.

First posted 2014-12-11 07:31:07

Leave a Reply