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Two years ago, the outbreak of a mysterious virus captivated the world. First detected in the state of Veracruz, Mexico in April 2009, the virus hopscotched from country to country leaving a trail of death and panicked citizens. Concerned that the virus would continue to spread, world governments banned travel to affected nations and urged citizens to take precautionary measures. U.S. Vice President Biden told citizens not to take mass transit. Airports installed thermal scanners to detect and quarantine infected travelers. Thousands donned surgical masks. Despite these precautions, two months after the virus's discovery, public health authorities diagnosed a full-fledged world pandemic. The Center for Disease Control predicted infection in half the U.S. population and up to 90,000 deaths. In order to limit the virus's reach, scientists tried to figure out what caused the virus in the first place and which measures would halt its progress. A research team developed a detailed family tree for the virus, tracing its origin to birds, then pigs, and then humans.6 Their research showed that the virus had eight genetic segments, six from swine flu viruses and two from Eurasian bird flu viruses. Once they understood the virus's story of origin, scientists concluded that it represented an entirely new strain of H1N1 influenza, one against which current seasonal vaccines would not protect. A new vaccine was developed that successfully warded off the virus. Other scientists studied the early course of the disease, determining that it was commonly transmitted through contact at schools. As a result, many schools temporarily closed, thereby reducing its spread through the population. By February 2010, flu activity in the United States had fallen below average annual totals and most Americans believed that the threat from the virus had ended.

Copyright infringement is said to be socially costly because it robs owners of due recompense and depresses incentives for creative production. This Article contends that in order to achieve copyright's goal of maximizing cultural production, this dominant story of infringement's costs requires alongside it a counter-story identifying the rare but important instances where copyright infringement enhances social welfare. Part I explains the need for an account of the novel notion of efficient copyright infringement. Other types of unlawful conduct may also be beneficial, but copyright in particular warrants exploration of efficient infringement because maximizing creative production requires some level of unauthorized use, and because copyright's political economy tilts in favor of expanding owners' rights. Part II explores efficient copyright infringement's domain, showing that unauthorized use of protected works of authorship will be prosocial where traditional private ordering is unavailable (or strongly undesirable) to facilitate a given use, and where that use is welfare-enhancing. Part III outlines broadly how a law of efficient copyright infringement might look. It first explains how the Copyright Act has failed to fully account for beneficial unauthorized use. It then considers a variety of ways that copyright damages could be structured to better accommodate efficient infringement. The Article concludes by situating this argument in the context of a growing literature that explores the surprising and underappreciated upside of unauthorized use of copyrighted works of authorship.