Good faith purchasers for value — individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality — have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of copyright’s distribution right. This Article examines copyright law’s anomalous treatment of good faith purchasers and shows how the concerns motivating the good faith purchaser doctrine in the common law, relating to the free alienability of property and the informational burdens that consumers might have to unduly bear, carry over to the principal settings where modern copyright law operates. It then develops an analogous doctrine for copyright law that would balance the concerns of copyright owners and innocent consumers. Under this doctrine good faith purchasers for value of objects embodying infringing content would obtain good title to such objects as long as they acquire the object from its manufacturer prior to a judicial determination of infringement against the manufacturer, i.e., so long as the manufacturer’s title is merely voidable and not void. The Article illustrates how such a doctrine would work in practice, and shows how its core elements remain compatible with copyright law’s existing analytical structure and normative ideals.
Balganesh, Shyamkrishna, Copyright and Good Faith Purchasers (February 10, 2015). California Law Review, Vol 104, 2016, forthcoming.