Innocent Infringement in U.S. Copyright Law: A History

This Article explores how copyright law addressed the issue of innocent infringement in its early years. Part I discusses how copyright law, from its beginnings in England in 1709 and in the United States in 1790, safeguarded innocent infringers from liability. First, the risk of any infringement was dramatically lower in copyright’s first centuries than it is today because so much less material was protected by copyright and the copyright owner’s exclusive rights were so much more limited. Within the universe of possible infringements, copyright law originally made it relatively easy for users of copyrighted works to avoid infringing: the law made relatively clear which activities it reserved to the owner if a work was copyrighted, and the system made it easy to determine whether a given work was in fact copyrighted. As a result, those who invaded an owner’s exclusive rights could generally be expected to have at least constructive knowledge that their activities were infringing.

R. Anthony Reese

Columbia Journal of Law & the Arts

March 6, 2008

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