whether the mechanism “controls” access to the work? Or to whether what is controlled amounts to “access” rather than something else? It is no easy task to shoehorn this definition into the statutory phrase meant to embody it. Small wonder that the courts find the statute confusing.
There is, in short, no reason to think that the DMCA is less amenable to the methods of judicial policymaking that have guided the development of the rest of copyright law. To the contrary, the DMCA suffers from some of the same sorts of infirmities that have confirmed the need for an independent judicial role.
C. Fair Use and Interbranch Partnership
There is precedent for the courts exercising their substantial policymaking powers in the domain of copyright to craft judge-made exceptions to liability based on public policy considerations even where the literal text of the statute seems to require a finding of infringement. Two features of copyright law in particular support an ongoing judicial role in recognizing exceptions to liability. First, copyright infringement is a strict liability offense; there is no requirement in the statute that the infringer have acted willfully or knowingly, or even consciously. Even so-called “innocent infringers” fall within the statute’s liability provisions, although they may be liable for reduced statutory damages. Second, the statute provides severe penalties for copyright infringement. A copyright plaintiff who cannot prove a penny of actual injury may nevertheless receive statutory damage awards that loom extraordinarily large in many cases: $750 to $30,000 per work infringed, increased to up to $150,000 per work if the infringement was willful. Many courts
- See supra notes 141-145 and accompanying text.
- See, e.g., Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F.2d 1110, 1113 (2d Cir. 1986) (“intent or knowledge is not an element of infringement”); Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir. 1978) (“[E]ven where the defendant believes in good faith that he is not infringing a copyright, he may be found liable.”); Educ. Testing Serv. v. Simon, 95 F. Supp. 2d 1081, 1087 (C.D. Cal. 1999) (“copyright infringement . . . is a strict liability tort”). This general rule predates the Copyright Act of 1976. See Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931) (“Intention to infringe is not essential under the  act.”).
There is a separate exception to copyright infringement liability in the statute for parties who rely in good faith on inaccurate notices of copyright included on the plaintiff’s works. See 17 U.S.C. § 406(a) (2006). This provision does not, however, create a general knowledge prerequisite to an action for copyright infringement.
- See, e.g., Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997) (“The fact that infringement is subconscious or innocent does not affect liability.”) (quotation marks omitted); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971) (“[C]opying need not be conscious, but may be the result of subconscious memory derived from hearing, seeing or reading the copyrighted work at some time in the past.”) (quotation marks and citations omitted); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 181 (S.D.N.Y. 1976) (“[I]nfringement of copyright . . . is no less so even though subconsciously accomplished.”).
- See 17 U.S.C. § 504(c)(2) (2006) (permitting reduction in statutory damage award “where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright”).
- See 17 U.S.C. § 504(c)(1)-(2).