The Concept of 'Harm' in Copyright

Abstract

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each variant conception. While the essay argues that there remain many issues that need to be resolved before making “harm” a formal prerequisite for liability in copyright, the essay takes steps toward resolving some of the open issues.

Keywords: copyright infringement, trespass compared with copyright, tort theory, incentives, harm, benefits, restitution, losses, foregone license fees, fair use, copyright prima facie case, counterfactual, historical-worsening, noncomparative

JEL Classification: K13