Why copyright infringement is not a strict liability tort ...
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By pr goold — dobbs, the law of torts 941 (west, 2000) [hereinafter dobbs]. 2 see e.g. cornelius j. peck, negligence and liability without fault in tort law, 46 wash. l. rev.
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1 STRICT LIABILITY IN COPYRIGHT [Vol. XX:N:nnn WHY COPYRIGHT INFRINGEMENT IS NOT A STRICT LIABILITY TORT AND WHY THAT MATTERS Patrick R. Goold* (Forthcoming, Berkeley Technology Law Journal) ABSTRACT Scholars and lawmakers routinely refer to copyright infringement as a strict liability tort. Copyright’s adoption of strict liability has been criticized as being immoral, inefficient and inconsistent with usual tort doctrine. However, as this article shows, such a characterization is incorrect. Copyright is not a strict liability tort. In the U.S.A. and other countries that adopt a fair use doctrine, copyright infringement is in fact 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 corrects a fundamental mistake in our understanding of copyright law, but it also reveals that the rules governing copyright infringement are not nearly as immo...
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