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IS COPYRIGHT INFRINGEMENT a STRICT LIABILITY TORT? Patrick R IS COPYRIGHT INFRINGEMENT A STRICT LIABILITY TORT? Patrick R. Goold † ABSTRACT Scholars and lawmakers routinely refer to copyright infringement as a strict liability tort. The strictness of copyright 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 United States 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: on one hand, did the defendant cause the plaintiff harm, and, on the other, was that harm justifiable? The Article concludes that, while no substantive changes need to be made to copyright’s liability rule, judges ought to restructure the fair use analysis in order to keep these concepts distinct from one another. © 2015 Patrick R. Goold † IP Fellow at IIT Chicago-Kent College of Law. The author would like to thank dearly the following people for their advice and comments: Shyamkrishna Balganesh, Christopher Buccafusco, Oren Bracha, Mark Gergen, Wendy Gordon, Justin Hughes, Edward Lee, Jake Linford, Kylie Pappalardo, Matthew Sag, Pamela Samuelson, Rebecca Tushnet, Richard Wright, Peter Yu. In addition, the author would like to thank the organizers and participants of the 2014 Santa Clara Works in Progress in Intellectual Property Workshop, the 2014 UC Berkeley Intellectual Property Scholars Conference, and the 2014 Michigan State Junior Scholars in Intellectual Property Conference. A special note of gratitude goes to the patient editors of the Berkeley Technology Law Journal. All mistakes are solely the responsibility of the author. Please send comments to [email protected]. 306 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 30:1 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................ 308 II. STRICT LIABILITY AND FAULT LIABILITY ....................................... 312 A. THE DOCTRINE OF STRICT LIABILITY AND FAULT LIABILITY ............ 312 1. Strict Liability ........................................................................................ 312 2. Fault Liability ....................................................................................... 314 a) State of Mind Fault ................................................................ 314 b) Standard of Conduct Fault ................................................... 315 3. Defenses ................................................................................................. 319 B. THE ECONOMICS OF STRICT LIABILITY AND FAULT LIABILITY ......... 321 1. Economics Foundation ............................................................................ 322 2. The Economic Goal of Tort Law ............................................................ 323 3. Strict Liability Rules .............................................................................. 324 4. Negligence Rules ..................................................................................... 325 5. The Substantive Difference between Strict Liability and Negligence .......... 325 III. STRICT LIABILITY AND FAULT LIABILITY IN COPYRIGHT INFRINGEMENT ............................................................... 326 A. BASIC COPYRIGHT DOCTRINE .................................................................. 326 1. The Prima Facie Case ............................................................................ 326 2. Fair Use ................................................................................................ 328 a) The Market Failure Approach ............................................. 330 b) The Balancing of Public Interests Approach .................... 331 B. EXISTING THEORIES OF COPYRIGHT INFRINGEMENT ......................... 333 1. The Orthodox View ............................................................................... 333 2. Professor Steven Hetcher’s Fault Liability View ..................................... 335 a) Professor Hetcher’s Argument ............................................ 336 b) Critique .................................................................................... 336 C. A DOCTRINAL REINTERPRETATION ........................................................ 338 1. The Fault in Copyright Infringement ....................................................... 338 a) A Blameworthy State of Mind? ........................................... 339 b) A Failure to Comply with a Standard of Conduct ........... 340 i) The Relationship of the Negligence Rule and the Fairness Rule .......................................................................... 340 2. The Harm in Copyright Infringement ...................................................... 344 a) Isolating the Harm in Copyright Infringement ................. 344 b) Harm and Fault in Fair Use ................................................. 347 3. Responding to the Orthodox View .......................................................... 351 D. AN ECONOMIC REINTERPRETATION ...................................................... 353 2015] COPYRIGHT INFRINGEMENT 307 1. The Economic Goal of Copyright Law .................................................... 353 2. A Strict Liability Rule in Copyright? ..................................................... 354 3. A “Negligence Rule” in Copyright .......................................................... 355 4. Incentives in Copyright: Strict Liability or Fairness? ............................... 356 E. CRITIQUES, COUNTER-ARGUMENTS AND A CAVEAT ........................... 357 1. Fair Copying Is Outside the Scope of the Right ....................................... 357 a) Merit to the Critique .............................................................. 358 b) Counter-Argument to the Critique ..................................... 359 2. Fair Use is an Affirmative Defense ........................................................ 361 a) Fair Use as an Affirmative Defense .................................... 361 b) The Procedural Role of Fault in Copyright Infringement ....................................................................... 362 3. A Caveat: The Market Failure Approach to Fair Use .......................... 364 IV. RESTRUCTURING FAIR USE ..................................................................... 365 A. THE NORMATIVE DEFENSIBILITY OF COPYRIGHT INFRINGEMENT’S LIABILITY RULE ........................................................ 365 1. The Normative Critique ......................................................................... 366 a) Inconsistency .......................................................................... 366 b) Inefficiency ............................................................................. 367 c) Immorality ............................................................................... 368 2. Answering the Normative Critique ......................................................... 368 a) Inconsistency .......................................................................... 368 b) Inefficiency ............................................................................. 369 c) Immorality ............................................................................... 370 3. Reforming Copyright Infringement as an Intentional Tort? ...................... 370 a) What Does Intent Mean in Copyright? .............................. 371 b) Ought Copyright Infringement Be an Intentional Tort? ..................................................................................... 372 B. THE FORMAL STRUCTURE OF COPYRIGHT INFRINGEMENT ............... 374 1. Collapsing Harm and Fault ................................................................... 374 2. The Burden of Proof ............................................................................... 377 a) The Theory of Burden Shifting ........................................... 377 b) The Burden of Proving Harm and Fault ........................... 378 3. Solution: Restructuring the Fair Use Analysis ........................................ 379 V. CONCLUSION ...................................................................................................... 381 308 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 30:1 I. INTRODUCTION Modern tort law has largely retreated from the principle of strict liability.1 Although for many centuries, the common law imposed civil liability upon a defendant for harm that was not his fault, today the law typically requires that a defendant act intentionally, recklessly, or negligently before he will be held responsible for the consequences of his conduct.2 For over a hundred years, jurists have largely applauded this transformation. The voices decrying strict liability come from the greatest figures of common law jurisprudence, such as Oliver Wendell Holmes—who argued that strict liability would wastefully deter productive activity3—to the foremost minds of contemporary legal thought, who argue that holding someone
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