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.
Gordon, Wendy J., The Concept of ‘Harm’ in Copyright (June 25, 2013). Intellectual Property and the Common Law (Cambridge University Press, Shyamkrishna Balganesh, ed., 2013, Forthcoming); Boston Univ. School of Law, Public Law Research Paper No. 13-28.