Patrick R Goold, Unbundling the ‘Tort’ of Copyright Infringement 102 Virginia Law Review 1833 (2016), available at SSRN. Patrick Goold’s Unbundling the ‘Tort’ of Copyright Infringement (‘Unbundling’) is an ambitious and remarkably illuminating article. Its central thesis is that ‘copyright infringement’ is best understood as a cover term for five different ‘copytorts’ related to the plaintiff’s being a copyright owner. By way of comparison, ‘trespass’ and ‘nuisance’ in tort law are pleaded and articulated with different names even though they both pertain to wrongs related to a plaintiff’s ownership of realty; this is because they are, conceptually and practically, quite different wrongs. Copyright law has never separated out its five different legal wrongs, either through statute or through judicial elaboration, either formally or informally. It has used the one phrase ‘copyright infringement’ indiscriminately for all. It turns out, Goold argues, that much of the confusion and conflict within copyright case law can be traced back to the failure to draw distinctions among the five copytorts. The task of the article is to outline the distinctions, thereby beginning the process of solving a number of doctrinal problems … (more)
[Benjamin C Zipursky, JOTWELL, 15 March]
First posted 2017-03-16 07:35:23
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