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First Page

305

Abstract

Scholars and lawmakers routinely refer to copyright infringement as a strict liability tort. The strictness of copyright liability has long been criticized as immoral, inefficient, and inconsistent with usual tort doctrine. However, this Article questions whether copyright infringement really is a strict liability tort. It advances the thesis that copyright infringement in the United States is a fault-based tort, closely related to the tort of negligence. Using both doctrinal and economic methods, this Article explicates the role that fault plays in copyright infringement. Doing so not only demonstrates that copyright’s liability rule is more normatively defensible than previously appreciated, but also provides a unique tort perspective on the nature of the fair use doctrine. By seriously engaging with the analytic question of whether liability for copyright infringement is strict or not, we highlight how the fair use analysis blends and confuses two separate issues: on one hand, did the defendant cause the plaintiff harm, and, on the other, was that harm justifiable? The Article concludes that, while no substantive changes need to be made to copyright’s liability rule, judges ought to restructure the fair use analysis in order to keep these concepts distinct from one another.

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