Restructuring Copyright Infringement

59 Pages Posted: 4 Jun 2019

See all articles by Abraham Bell

Abraham Bell

Bar Ilan University - Faculty of Law; University of San Diego School of Law

Gideon Parchomovsky

University of Pennsylvania Law School

Date Written: Jan 1, 2019

Abstract

Copyright law employs a one-size-fits-all strict liability regime against all unauthorized users of copyrighted works. The current regime takes no account of the blameworthiness of the unauthorized user or of the information costs she faces. Nor does it consider ways in which the rightsholders may have contributed to potential infringements, or ways in which they could have cheaply avoided them. A non-consensual use of a copyrighted work entitles copyright owners to the full panoply of remedies available under the Copyright Act, including supra-compensatory damage awards, disgorgement of profits and injunctive relief. This liability regime is unjust, as it largely fails to differentiate among willful infringers, good faith users who accidentily infringe, and ordinary users who fail to understand the intricacies of copyright protection infringement. No less importantly, one-size-fits-all liability sets back the goals of the copyright system by excessively deterring newly created works and encouraging copyright owners to be less than forthcoming about their expectations from users.

In this Article, we propose a radically different liability regime predicated on the degree of the infringer’s blameworthiness. Concretely, we call for the establishment of three distinct liability categories — inadvertent, standard, and willful infringements — and tailor a specific menu of remedies for each of the categories. Under our proposal, inadvertent infringements would be remedied by compensatory damages only. Standard infringements would entitle copyright owners to a broader variety of monetary damages, including disgorgement of profits, and limited statutory damages, but typically no injunctive relief. Willful infringements would be addressed by the full variety of remedies available under the Copyright Act, including punitive statutory damages and injunctions.

We demonstrate that our proposed system of graduated liability yields a far more nuanced and just liability system, one that would also enhance use of existing works and promote future creativity. Limiting the potential liability of users and creators would facilitate the use of copyrighted content and the production of future works. It would also result in a fairer copyright system, the benefits of which would inure to society at large. At the same time, by organizing infringement into our proposed categories, our system would reform infringement law without imposing excessive new fact-finding burdens on courts and litigants.

Keywords: copyright, infringement, remedies, liability

JEL Classification: K11, K40, O34

Suggested Citation

Bell, Abraham and Parchomovsky, Gideon, Restructuring Copyright Infringement (Jan 1, 2019). Texas Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3387605

Abraham Bell (Contact Author)

Bar Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

HOME PAGE: http://law.biu.ac.il/English/segelE.php#

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Gideon Parchomovsky

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

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