I am excited to present my current work-in-progress, The Innocent Infringer Defense in the Age of Electronic Files and Fences, at the 2012 Lutie A. Lytle Black Women Law Faculty Writing Workshop at Suffolk University School of Law in Boston, MA (June 28-July 1).
Now in its sixth year, The Lutie A. Lytle conference is an annual workshop for current black women law faculty and those black women who are considering law teaching. It is named in honor of the life and work of Lutie A. Lytle, the first black woman to teach in an American law school.
This work-in-progress highlights the innocent infringer problem in the electronic goods context in greater detail. I trace the historical roots of the innocent infringer defense and policy considerations in Anglo-American copyright law. Next, I explore the history and role of statutory damages in copyright jurisprudence and the propriety of such an approach in general. Additionally, I analyze whether copyright should remain a strict liability offense in the digital age.
Finally, I explore ways the existing law can be changed to provide optimal or at least improved legislative and judicial relief to innocent infringers. One idea is to offer innocent infringers in the digital context “safe harbor” provisions similar to those offered to online service providers by the Digital Millennium Copyright Act for secondary liable. In the final analysis, I argue that any truly effective change would encourage the benefits to society that justify a copyright monopoly in the first place and better safeguard the innocent consumer in the digital age.