Copyright and Good Faith Purchasers

Date: July 16, 2015 (Thursday)

Time: 1:30pm-2:30pm

Venue: Room 723, 7/F, Cheng Yu Tung Tower, HKU

Speaker: Prof. Shyamkrishna Balganesh, University of Pennsylvania Law School


Good faith purchasers for value—individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality—have long obtained special protection under the common law. Despite the seller’s own actions being tainted, such purchasers obtain valid title themselves and are allowed to freely alienate the property without any restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly and in good faith purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property, or risk running afoul of copyright’s distribution right. This Article examines copyright law’s anomalous treatment of good faith purchasers and shows how the concerns motivating the good faith purchaser doctrine in the common law, relating to the free alienability of property and the informational burdens that consumers might have to unduly bear, carry over to the principal settings where modern copyright law operates. It then develops an analogous doctrine for copyright law that would balance the concerns of copyright owners and innocent consumers. Under this doctrine good faith purchasers for value of objects embodying infringing content would obtain good title to such objects as long as they acquire the object from its manufacturer prior to a judicial determination of infringement against the manufacturer, i.e., so long as the manufacturer’s title is merely voidable and not void. The Article illustrates how such a doctrine would work in practice, and shows how its core elements remain compatible with copyright law’s existing analytical structure and normative ideals. The full paper is available for download here:

Prof. Shyamkrishna Balganesh’s scholarship focuses on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts and structures from different areas of the common law, especially private law. His most recent work examines the absence of good faith purchaser protection in copyright law and the consequences of this anomaly for the ownership of movable property. While at Yale Law School, he was an Articles & Essays Editor of the Yale Law Journal and a Student Fellow at the Information Society Project (ISP). Prior to that he spent two years as a Rhodes Scholar at Balliol College, Oxford. Recent articles include: “Copyright and Good Faith Purchasers,” California Law Review (forthcoming 2016), “Structure and Value in the Common Law,” University of Pennsylvania Law Review (forthcoming 2015), “Unplanned Coauthorship,” Virginia Law Review (2014), “Copyright Infringement Markets,” Columbia Law Review (2013), “Gandhi and Copyright Pragmatism,” California Law Review (2013), “The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying,”Harvard Law Review (2012); and “The Normativity of Copying in Copyright Law,” Duke Law Journal (2012), among others.