Reese on the History of Innocent Infringement in U.S. Copyright Law

Innocent Infringement in U.S. Copyright Law: A History is an article by R. Anthony Reese, University of Texas at Austin School of Law. I appeared in the Columbia Journal of Law & the Arts (2007). Here's the abstract:

American law generally imposes liability on anyone who infringes a copyright, regardless her mental state, and even if her infringement is innocent - that is, when she engages in infringing activity without reason to know that her conduct infringes (perhaps most commonly when she knowingly copies from another's work but reasonably believes that her copying is legally permissible). This is true even though one of copyright law's most important goals is distinguishing legitimate copying, which is encouraged, from illegitimate copying, which is to be deterred.

Courts and commentators have paid little attention to this aspect of copyright law. This article demonstrates that from its inception, copyright law in Great Britain and the United States reflected a substantial concern that innocent copyright infringers not be punished and explores in detail the mechanisms used to achieve that goal. These included structuring the copyright system to make it easy for users of works of authorship to avoid infringement and limiting liability for certain kinds of infringement to instances in which a party knew her acts were infringing.

The article then shows how between 1909 and 1989, almost all of copyright law's safeguards protecting innocent infringers disappeared. The changes occurred gradually, and mostly for reasons entirely unrelated to innocent infringement. The end result, though, was a great increase in the likelihood that innocent infringers will be held liable. The only protection offered to unknowing infringers is limited remedial relief, which is a very weak bulwark against the danger that liability will deter permitted uses of copyrighted works. The public's ability to use copyrighted works without the owner's consent in ways that the law encourages - including making fair use of a work, or using the work's unprotected ideas - is undermined when users who innocently exceed the scope of the law's permission face liability.