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The Role of Intent in Copyright Law

In preparation for an upcoming conference paper, I’ve been doing some research into the role of intent in copyright law, particularly in the context of direct infringement.  I understand that Steven Hetcher may have presented a paper along these lines at IPSC this year, but I was one of the unfortunate few who missed the conference this year.  So if anyone was at the discussion of his paper, I’d be interested in your thoughts.

There seem to be a number of historical explanations as to why copyright infringement attracts strict liability.  They include the fact that, at least in the United States, registration and notice of copyright works were historically linchpins of the system and so potential infringers were relatively easily said to be put on notice of the copyright owner’s claim to his/her copyright.  Additionally, there seem to have been a lot of historical analogies made with property law, and the tort of trespass in particular.  There is also the argument that between the plaintiff and the defendant, the defendant is often best placed to avoid the loss, so as a matter of economics, it makes sense to put the liability risk on the defendant.  A corollary to this point is that it is often difficult to for a plaintiff to prove what a defendant’s subjective intent was with respect to his/her use of the protected work, so strict liability is a fairer option.

I’m interested both in whether I’ve missed any historical explanations and as to whether many of these explanations still hold water.  It seems to me that notice and registration of copyright works are now less significant than in the past because of compliance with the Berne Convention.  I’m also a little leery of the analogies between copyright infringement and real property trespass (although I’ve recently been reading some of Wendy Gordon’s work in this area which runs some good arguments to the contrary).

Does anyone know of any good recent work on the issue of intention/strict liability in copyright?  I’m particularly interested in looking at the direct infringement question, because obviously the defendant’s state of mind has been relevant in various forms of secondary liability – well at least contributory liability.

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