The immorality of strict liability in copyright.

• Author: Hetcher, Steven

1. 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

1. INTRODUCTION

   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. If the plaintiff has no colorable fair use defense and thus fails to prevail, it is not because the standard is strict liability, but because it is fault liability where the defendant is at fault, that is, not a fair user. What makes this appear not to be the case is that the defendant bears the burden with respect to establishing fair use. But this does not mean that fair use does not introduce a fault standard into what had been strict liability; it just means that, as compared to the fault standard in tort generally, defendants are less well situated, as they bear the burden of establishing a lack of fault on their part. However, in a typical tort suit it is the plaintiff who bears the burden to establish fault. This puts copyright defendants in a less favorable position than negligence defendants in other tort contexts, because it will be easier for plaintiffs in infringement suits to make out a prima facie case and thus to prevail, if the defendant does not step forward to defend herself, or cannot make out her defense for reasons apart from the merits, such as an inability to proffer relevant evidence due to financial inability. But the fact that a defendant could in principle rebut an infringement allegation through a showing of fair use is what makes the cause of action a fault based one.

   I will argue that there is an important policy implication of this doctrinal interpretation: that the burden of proof with regard to this fault standard should be shifted from defendant to plaintiff. In other words, I am proposing that alleging an absence of fair use, that is, an unfair use, should be added to the plaintiff's prima facie cause of action for infringement. Courts are well placed to shift this burden so that legislative change is not necessary. If this policy proposal is implemented, two important legal consequences are likely to follow. First, shifting the burden of proof with regard to fair use will result in fewer instances of default judgments against defendants in copyright infringement suits. Second and correlatively, fewer infringement suits will be brought in the first place. Before directly engaging in these main arguments, it will be helpful to first explore some general connections between tort and copyright.

2. THE TORT OF COPYRIGHT INFRINGEMENT

   Copyright infringement is a tort. (6) That is orthodoxy. (7) What precisely this means or entails is less often discussed. Indeed, the opposite position might appear more intuitive, namely that copyright infringement is one aspect of a general carve-out from the state common law of tort for those wrongs specified in the Copyright Act.

   On this view, the dividing line between common law torts and copyright infringement would be the preemption clause of the Copyright Act, according to which there can be no common law torts that are duplicative of those wrongs specified in the Act. (8) Given the division, one might not think it unreasonable to inquire as to whether or not we can even denominate the sort of wrongs specified in the Copyright Statute as torts. After all, is not judge-made law often contrasted with statutory law as a distinctive species of a genus? (9) While this latter statement is true, upon closer inspection, it would appear not to gainsay the former legal proposition, namely, that not all torts are common law torts. There are common law torts and there are statutory torts. (10) To state the issue succinctly; why else call copyright infringement a tort unless it shares the features of a tort? 11 This raises the question as to what are the common features of torts and are these features of the common law or statutory origin? In other words, what features does copyright infringement share with its sibling, torts, from the tangible world?

3. FAIR USE AS A FAULT STANDARD

   As noted above, it is an orthodoxy to describe the liability standard in copyright law as strict liability. Established copyright doctrine provides no significant allowance for the notion of a fault-based liability standard. To the extent that fault enters the picture in the orthodox view, it is in the distinction between "intentional infringement," on the one hand, and "innocent infringement," on the other hand. (12) The distinction has an impact on the mitigation of damages but not on liability itself. (13) As will be seen in greater detail below, "innocent infringement" is a very limited fault principle.

   By contrast, tort law is uniformly conceived of as having three liability standards, as is witnessed by the fact that tort casebooks are typically organized around the tripartite distinction of intentional torts, negligence or fault-based torts, and strict liability torts. (14) Note that while tort orthodoxy views the tripartite liability standards as pivotal to the organization of tort law, this distinction is not essential to tort itself. Goldberg, Sebok, and Zipursky characterize a tort as follows:

   In sum, to commit a tort is to act in a manner that is wrongful toward and injurious to another. Torts in turn refers to the collection of recognized legal claims that enable a person (or entity) to obtain redress from another on the ground that he (or it) has suffered injury by virtue of having been wronged by that other. Tort law consists of the rules and principles that determine right conduct, as well as the circumstances under which a victim can obtain redress, and the form that such redress may take. [T]ort law articulates legal responsibilities or duties that persons owe to one another and provides victims of conduct breaching those duties with redress against those who have wronged them. (15) Note that this definition does not mention liability standards at all, much less whether there should be some specific number of them. If some particular doctrine with regard to the correct number and type of liability standards is not part of an exemplary definition of a tort, the fact that copyright infringement has a different number than torts generally would appear not to disqualify infringement as a tort.

   My dispute with the...