Redefining the Intended Copyright Infringer

The contemporary copyright infringer is pretty much anyone who can get caught. Yet, who could be caught back when the Copyright Act of 1976 was enacted is just a subset of those who can be caught today—we had very different concepts about who was the intended target of an infringement action than who fits into that mold today. The advent and growth of cyberspace communication now makes it both easier to infringe and for IP owners, with very little effort, to capture infringers. The ability of individuals to both easily infringe and easily be found infringing has altered the IP landscape in a significant way; it affects IP’s fundamental values and expands its limits.

With this in mind, it is imperative that we examine who should be the intended infringer and whether all infringers should be treated the same with regards to remedies, based on the policy considerations when the act was drafted and today. Limiting the universe of infringers and the rights of copyright owners to the limits of protection when the 1976 Act was implemented is one viable approach to consider, as is differentiating remedies based on the type of infringer.