Shyamkrishna Balganesh

Property Along the Tort Spectrum: Trespass to Chattels and the Anglo-American Doctrinal Divergence

In attempting to apply the tort of trespass to chattels to the virtual world of the Internet, courts in the United States encountered a seemingly odd, yet significant doctrinal issue. While the traditional English action allowed for a claim without any showing of harm or damage (like it did for trespass to land), American (state) common law appeared to insist upon a showing of ‘actual damage to the chattel’ before the tort became actionable. This article undertakes a conceptual analysis of the tort of trespass to chattels, focusing on the difference between English and American common law on the requirement of actual damage. It then attempts to construct a theoretical argument for this doctrinal divergence, based on the vindicatory and corrective functions that the tort is presumed to perform and employs a transaction costs model from law and economics to rationalize the variance between the English and American versions of the tort. It concludes by noting that while there may indeed be efficiency gains to be had from the American version of the tort, the realization of the same may require greater certainty in the laws understanding of ‘damage’ and ‘harm’ than has been seen in the recent past.

Copyright and Good Faith Purchasers

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.

Gandhi and Copyright Pragmatism

Mahatma Gandhi is revered the world over for his views on freedom and non-violence, ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly believed to have been a moral perfectionist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with the institution of copyright law during his lifetime — as a writer, editor, and publisher — his approach routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced, internal understanding of the institution and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, and incremental transformation over time, as the economic and political circumstances surrounding his engagement with copyright changed. In it we see a dimension of Gandhi’s thinking that has thus far been ignored, emanating from his training as a common lawyer. This Essay traces the development of Gandhi’s views on copyright to show how he anticipated several of the central debates and controversies that are today the staple of the copyright wars, and developed an approach to dealing with copyright’s various problems, best described as “copyright pragmatism.” As an approach that draws on legal and philosophical pragmatism, copyright pragmatism entails a critical engagement with copyright as a legal institution on its own terms, but contextually and with an eye towards its various costs, benefits, and normative goals at each stage of engagement. The Essay then unpacks the analytical moves that copyright pragmatism entails to show how it holds important lessons for the future of copyright thinking and reform.