Restructuring copyright infringement

Abraham Bell, Gideon Parchomovsky

Research output: Contribution to journalArticlepeer-review

2 Scopus citations


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 nonconsensual 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 accidently 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.

Original languageAmerican English
Pages (from-to)679-735
Number of pages57
JournalTexas Law Review
Issue number4
StatePublished - Mar 2020

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