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Full-Text Articles in Law
The "Strict Liability" Of Direct Patent Infringement, Lynda J. Oswald
The "Strict Liability" Of Direct Patent Infringement, Lynda J. Oswald
Vanderbilt Journal of Entertainment & Technology Law
In 1995, the Federal Circuit summarily attached the label of "strict liability" to direct patent infringement, even though that term does not appear in any US Patent Act enacted in the past two centuries. The catechism of "strict" direct patent infringement liability is now so well engrained in patent doctrine that it is easy to lose sight of how recent the advent of this terminology is in the case law, and how troublesome application of this standard has proven, even to the Federal Circuit, which created it. The first Patent Act (1790) preceded the emergence of tort law as a …
Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton
Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton
Vanderbilt Journal of Entertainment & Technology Law
Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff's rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk …