46 Pages Posted: 7 Oct 2007 Last revised: 18 May 2014
Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when websites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the website appears legitimate, whether a user's good-faith belief is reasonable, or whether the website owner is unaware that the material is infringing, users who download infringing material face strict-liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The law facilitates copytraps because it governs circumstances today that were never contemplated when copyright's strict liability emerged centuries ago. What has been good policy for real space is bad policy for cyberspace. As copytraps become common, end users will increasingly encounter the unfairness of strict-liability punishment and ultimately become reluctant to download from unfamiliar sites. The effects of copytraps cast doubt on the wisdom of strict liability: copytraps unfairly punish the innocent, foster copyright abuse, unduly burden commerce, restrict speech, and deter the dissemination of knowledge. Congress should therefore amend the Copyright Act. Rather than imposing statutory damages on innocent downloaders, the Act should require only that innocent downloaders delete infringing material. In the alternative, courts should interpret its strict-liability provision as not applying to online expression.
Keywords: copyright, copytrap, strict liability, speech, Internet, downloading, constitution, first amendment, due process
JEL Classification: K10, K13, K14, K19
Suggested Citation: Suggested Citation