Strict Liability and Negligence in Copyright Law : Fair Use As Regulation of Activity Levels

Copyright infringement is a tort. As such, it aims at prompting third parties to consider the specific social costs associated with some types of unauthorized dealing with works of authorship by holding them liable in tort for actions that undermine the creative incentives of authors. Any attempt to explain the rationale behind the choice of standards for copyright liability and the nature of the fair use doctrine could therefore gain valuable insight from the general theory and economic analysis of tort law, in particular accident law.In this Article, I argue that the tort of copyright infringement constitutes a mixed system of liability, which resorts to both strict liability and negligence to achieve the utilitarian aim of promoting the progress of science and the useful arts, as instructed by the Intellectual Property Clause of the Constitution. Copyright infringement is structured to mirror trespass upon property, while the fair use doctrine operates as a negligence standard optimizing activity levels involving some form of dealing with an earlier work