Volume 102

Unbundling the “Tort” of Copyright Infringement

Judges and jurists orthodoxly view copyright infringement as a singular legal wrong, a.k.a. the tort of copyright infringement. In recent years, commentators have expressed mounting concern about the judicial test for this tort. Courts have no unified method for determining whether two works are substantially similar. The fair use doctrine is so unpredictable that some find it nothing more than the “right to hire a lawyer.” And while some judges treat infringement as a property tort, like trespass or conversion, others think of it as an economic tort, like unfair competition. Scholars therefore find the test for infringement—copyright’s “infringement analysis”—to be inconsistent and incoherent.

This Article provides a revised positive theory of copyright that clarifies the infringement test. The Article argues that copyright infringement is not one singular tort, but a group of torts. Using an analytic jurisprudential method, the Article “unbundles” infringement into five “copy-torts”: consumer copying, competitor copying, expressive privacy invasion, artistic reputation injury, and breach of creative control. Because copyright infringement is not one tort there cannot be one single infringement test. Instead, copyright’s basic infringement analysis mutates doctrinally and theoretically to provide a unique legal test for each of the copy-torts. The variation in the infringement analysis is not necessarily inconsistent or incoherent, but enables courts to test for the different copy-torts. Understanding the different copy-torts will therefore make the infringement analysis more predictable. Not only will practitioners better foresee how courts will apply the test to their cases, judges are also provided with a guide to applying the correct legal standards in infringement actions. To make the analysis even more predictable, the Article proposes a method of adjudicating hard cases that will help courts conceptually separate the copy-torts, thus ensuring they apply the correct legal tests in the future.

Legal Design for the “Good Man”

Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise.

At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored.

But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for various different kinds of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law. A lawmaker ought to design legal rules in a way that attends to this variety if her aim is to design socially optimal rules.

This Article systematically analyzes the problem of legal design in the face of the diversity of motivational types that exist in the population of legal subjects. Part I develops a typology of good persons by exploring the causes and consequences of legal norm internalization—the ways in which a person’s preferences are transformed such that he comes to value complying with legal rules for the sake of the rules. Part II argues that a good person’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms and the ways in which he responds to the various kinds of uncertainty to which the legal system exposes him. Part III derives normative implications of my analysis for consequentialist lawmakers, while also addressing the converse worry that good man analysis of law is too complex to be tractable. The overall aim is to systematically examine the ways in which a diversity of motivations in the population complicates the problem of legal design for legislators, judges, and administrative officials, and to develop an organizing framework that can be used to think about the problem rigorously, which I illustrate by exploring some examples.

The Positive Right to Marry

Obergefell v. Hodges held same-sex couples have a right to legal marriage. As the dissenters emphasized, this right to marry is anomalous, doctrinally and normatively. Most rights in the United States Constitution are negative liberty rights. For example, the states may not interfere with procreative choices, but individuals have no right to public funds for contraception. Moreover, if children have no right to public funds for education, it seems morally dubious to claim a right to public support for adult marriages. What is this positive right to marry and what justifies it? This Article reconstructs a conceptual and normative foundation for the positive right to marry. Previous theories of the right to marry as a negative liberty right or an equality right are unsatisfactory, because they fail to justify the connection between intimate liberty and marriage law. The right to marry is a positive right, but one of a specific kind. Unlike the right to education, it is not a claim to public benefits. It is a “power right,” a right to create legal duties for intimate relationships. This right is not simply a means to promote valuable relationships; it is necessary to ensure equal liberty. Relationships carry open-ended commitments that threaten to subordinate the partners to one another. A right to legal marriage is necessary to reconcile intimate liberty with equality.

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