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Moral Reflections on Strict Liability in Copyright

Goold, P. ORCID: 0000-0003-1097-8291 (2021). Moral Reflections on Strict Liability in Copyright. Columbia Journal of Law and the Arts, 44(2), pp. 123-156.


Accidental infringement of copyright is a pervasive and largely ignored problem. In the twenty-first century, it has become increasingly easy to infringe copyright unintentionally. When such accidental infringement occurs, copyright law holds the user strictly liable. Prior literature has questioned whether the strict liability standard is normatively defensible. In particular, prior literature has asked whether the strict liability standard ought to be reformed for economic reasons.

The essay examines the accidental infringement problem from a newperspective. The essay considers whether it is fair to hold copyright users strictly liable for accidental infringements of copyright. Tentatively, the essay argues that the strict liability standard is not fair because it results in copyright users being held liable for accidents for which they are not morally responsible. Using the moral philosophy literature on responsibility, the essay explores our intuitions surrounding copyright’s liability standard in order to better understand why strict liability in this context seems “harsh” and “inequitable.” In turn, this provides an argument for reforming copyright’s liability rule and adopting a negligence standard. Within the US, this should be accomplished by modifications to the existing fair use doctrine.

Publication Type: Article
Additional Information: This work is licensed under a Creative Commons Attribution 4.0 International License. Copyright (c) 2021 Patrick R. Goold.
Publisher Keywords: Copyright, Tort, Law & Philosophy
Subjects: K Law > K Law (General)
Departments: The City Law School > Academic Programmes
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