I’ve often wondered whether it is technically correct to refer to intellectual property infringement as a species of tort law.Â We tend not to equate torts with IP in common parlance, but there are certainly similarities, notably with property-based torts like trespass and conversion.Â Maybe we don’t use the tort terminology because it runs up against the notion of property-based torts and many of us don’t like equating IP rights too absolutely with physical property rights.Â I suppose another reason to avoid the analogy is that IP tends to be a more specialized area than tort law and people may not want to blur the boundaries between more generalized and more specialized areas of law.Â But torts are basically civil wrongs resulting in attempts to repair the harm done to a victim and this could just as easily describe an IP infringement suit, couldn’t it?Â I’m just interested in the terminological issue and whether there is something more substantive at stake.
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I’ve had similar thoughts in the past. One area where there is an acknowledged overlap/influence is in the realm of secondary liability. The tort theory of respondeat superior is said to provide the basis for vicarious copyright infringement.
This has been argued here and there and, for some purposes, has been accepted by the Courts. There are some Federal Court of Claims cases where plaintiffs have tried (generally unsuccessfully, I think) to argue infringement is a taking to fit it within the Tucker Act, and you may find some “copyright infringement is a tort” language in those (and the arguments there would be substantive; e.g., Grayton v. U.S., 92 Fed.Cl. 327 (2010)) .
The 7th Circuit included releavnt language in its 2003 Bucklew v. Hawkins, Ash, Baptie & Co. decision (329 F.3d 923): “Copyright infringement unlike patent infringement is an intentional tort . . .”
The Bucklew cite revolves around a discussion of damages, where again I think there might be something substantive to the discussion (though perhaps it doesn’t arise so often because of the availability of statutory damages).
FYI, Paul Torremanns in the UK has also made this claim (among others in the UK).
I haven’t thought through the implications for, say, Calabresi & Melamed’s property vs. liability rules theory …. but I’m inclined to the tort school of thought, at least for copyright liability. One (probably simplistic) question I’ve wondered about – if not tort, what other legal basis would make better sense? From the comparative angle, I’m not sure whether it would/should make a difference that US copyright (and for that matter patent) law has a Constitutional origin/imperative.