Cyberspace, Exceptionalism, and Innocent Copyright Infringement

Cyberspace, Exceptionalism, and Innocent Copyright Infringement

Jacqueline D. Lipton · 13 Vand. J. Ent. & Tech. 767

Abstract

Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff’s rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk of the loss. Most of these rationales have been applied at one time or another to copyright law. This Article considers whether it is appropriate to reconsider strict liability in copyright, particularly in the context of today’s cut and paste’ digital culture. The Author outlines some potential options for reform to mitigate the harshness of the doctrine in appropriate circumstances.