The Immorality of Strict Liability in Copyright

By Hetcher, Steven | Marquette Intellectual Property Law Review, Winter 2013 | Go to article overview
Save to active project

The Immorality of Strict Liability in Copyright

Hetcher, Steven, Marquette Intellectual Property Law Review


"Abhorred monster ! Fiend that thou art ! The tortures of hell are too mild a vengeance for thy crimes. Wretched devil ! You reproach me with your creation; come on, then, that I may extinguish the spark which I so negligently bestowed." (1)

Mary Shelley, Frankenstein


I will argue for a fundamental reconceptualization of liability for copyright infringement. Specifically, I will argue that the essentially unchallenged orthodoxy that copyright infringement is a strict liability tort is false. From the Supreme Court on down, it does not even appear to be questioned that copyright infringement applies a strict liability standard. (2) Upon reflection, this is peculiar, given that this is anything but an innocuous doctrine. It is just the opposite; it is a doctrine that strongly favors copyright owners who may more easily prevail in infringement suits, as it will always be easier to establish strict liability as compared to fault liability. Fault liability is strict liability with one additional showing--not just that the defendant injured the plaintiff, but that the defendant injured the plaintiff and did so in a faulty manner.

The lack of discussion is particularly puzzling in light of the pervasive view among copyright scholars that copyright law unduly favors copyright owners. Here is a fundamental rule that apparently favors owners and yet goes unquestioned by courts. Moreover, it is a peculiar rule that is out of step with modern tort law. Famously, there was historically a shift from strict liability to fault liability in tort. The transformational case most often cited is Brown v. Kendall. This naturally raises the question as to why this historical shift occurred in tort generally, but not in copyright. Why should copyright owners be favored in this manner when owners of physical goods are not? We are presented with a modern liability regime in which one can haul dangerous materials through a metropolitan area, such as Chicago, and be subject to a fault rule, but snap a photo of the label on a hazardous waste container and be strictly liable for large statutory damages. (3) It is hard to resist the conclusion that the strict liability rule is antiquated and out of step with modern tort law, which no longer supplies owners with the strongly favorable rule that is strict liability. Given this backdrop, my claim that indeed it is no longer the case that there is strict liability in copyright will not seem so strange. What is strange and in need of explanation, is the orthodox view that copyright infringement is strict liability.

I will argue that as a result of the emergence of the fair use doctrine, the liability standard for infringement in copyright is now a fault standard. Closer scrutiny will show the orthodoxy to be an anachronism; however, once true but no longer so. My argument is not a normative one--that copyright infringement should employ a fault standard, but an analytic or interpretive one--that due to the important role played by the fair use doctrine, copyright infringement, properly understood, already employs a fault standard. (4)

In this fundamental respect, U.S. copyright law is distinct both from that of civil law countries and other common law countries that have not adopted a fair use doctrine in copyright law. Fair use is sometimes compared to similar-sounding doctrines of other countries' copyright regimes. (5) There is a crucial distinction; however, which is that notions such as fair dealing are well-delineated, statutory carve-outs. By contrast, a fair use defense may always be introduced under any factual circumstances. It is never dispositive to establish the elements of strict liability. This is only sufficient to make out the prima facie case of infringement.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Immorality of Strict Liability in Copyright


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?