I. INTRODUCTION II. THE TORT OF COPYRIGHT INFRINGEMENT III. Fair Use as a Fault Standard IV. SHIFTING THE BURDEN OF PROOF V. CONCLUSION
"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. …