Proving Infringement: Burdens of Proof in Copyright Infringement Litigation

Authors

Lydia Pallas Loren, Lewis & Clark Law School
R. Anthony Reese, University of California, Irvine School of Law

First Page

621

Abstract

The Copyright Act says very little about the plaintiff’s burden of proof in establishing liability in an infringement case, although courts have, to varying degrees, allocated burdens of proof, including identifying certain defense arguments as affirmative defenses. The Article seeks to provide greater analytical clarity to the complicated area of the burdens of proof in copyright infringement litigation. In particular, the Article identifies many “defenses” to a copyright infringement claim as not being true affirmative defenses but rather being rebuttals to a plaintiff’s efforts to satisfy the burden of persuasion. Careful understanding of the burdens of persuasion, the different types of defense arguments, and the potential shifting of the burden of coming forward with additional evidence will aid attorneys and courts in a more accurate and thorough analysis of both the procedural and substantive issues raised in any particular infringement case.

Recommended Citation

Lydia P. Loren & R. A. Reese, Proving Infringement: Burdens of Proof in Copyright Infringement Litigation, 23 Lewis & Clark L. Rev. 621 (2019).
Available at: https://lawcommons.lclark.edu/lclr/vol23/iss2/6