The Moral Psychology of Copyright Infringement

71 Pages Posted: 1 Apr 2015 Last revised: 10 Nov 2016

See all articles by Christopher Buccafusco

Christopher Buccafusco

Duke University School of Law

Dave Fagundes

Emory University School of Law

Date Written: March 30, 2015


Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral foundations theory, to analyze the essential reasons that make owners feel that they have been wronged. Recent work in this field shows that people generally exhibit moral indignation for a variety of reasons, including but by no means limited to experiencing economic harm. So while copyright law assumes that owners are economically rational beings who will sue only to protect their creative incentives, our analysis shows that owners will also sue over concerns related to sullied purity, breached loyalty, and a sense of injustice. Outlining the moral psychology of copyright infringement generates both theoretical and practical payoffs. First, it allows us to chart a middle course between the traditional copyright theories of economic consequentialism and moral rights. We show that actively accounting for owners’ innate sense of moral outrage better allows us to craft a copyright system that is truer to its constitutional goals of optimizing creative production. Second, it enables us to explore a variety of different policy levers — statutory, constitutional, and administrative — that could ameliorate the social problems raised by infringement suits not motivated by copyright-relevant harm. This Article represents a first step toward a fuller empirical exploration of the subjective experience of copyright infringement, as well as an illustration of the potential that moral psychology and moral foundations theory have for law generally.

Keywords: intellectual property, harm, economics, fair use, damages, injunctions, litigation, behavior, motivation

Suggested Citation

Buccafusco, Christopher J. and Fagundes, Dave, The Moral Psychology of Copyright Infringement (March 30, 2015). Minnesota Law Review, Vol. 100, Forthcoming, Southwestern Law School Research Paper No. 2015-12, U of Houston Law Center No. 2016-A-26, Available at SSRN:

Christopher J. Buccafusco (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Dave Fagundes

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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