UC Hastings Professor Ben Depoorter and Robert Walker ‘13 examine the implications and dangers of enforcement “false positives” in the area of copyright.
Applying new technologies, copyright holders increasingly sweep the net to detect alleged infringements and issue takedown notices. As the authors demonstrate, these largely automated enforcement processes fail to take into account the fine contours of copyright law and the rights reserved to the public (fair use, etc.).
Overbroad copyright enforcement chills freedom of expression, inflates litigation costs, and bogs down a system already mired with complexities and challenges. The article, forthcoming in Notre Dame Law Review Volume 89 in 2014, explains the trend of copyright enforcement false positives and offers policy recommendations and solutions.
From the Abstract
Copyright enforcement is riddled with false positives. A false positive occurs when enforcement actions are taken against uses that are not actual infringements. Far from benign occurrences, copyright false positives inflict significant social harm in the form of increased litigation and transaction costs, distortions of licensing markets through rent-seeking behavior, increased piracy due to diminished public adherence with copyright law, and the systemic erosion of free speech rights and the public domain.
To combat this problem, this Article analyzes the causes that give rise to false positives, as well as their legal and social effects, and offers policy recommendations targeted at mitigating the damage of false positives. These policy recommendations include heightening the registration requirements to include a substantive review of all copyright claims; the promulgation of regulations dictating that copyright registrations be periodically renewed; and revision to the statutory damage provisions of the Copyright Act in order to encourage litigation that would help to excise false positives from the copyright corpus.
About the Authors
Professor Ben Depoorter is a graduate of Yale Law School (L.L.M., J.S.D.). He also holds a JD (1999) and PhD (2003) from Ghent University and a Master's degree from the University of Hamburg (2001). Depoorter received the Roger Traynor scholarship prize at UC Hastings in 2011. He currently holds the Roger J. Traynor Research Chair at UC Hastings and is an Affiliate Scholar at the Stanford University Center for Internet & Society. Professor Depoorter's scholarly interests include the enforcement of copyright law, property law theory, technology and intellectual property law, with an emphasis on behavioral research.
Robert Kirk Walker is an Affiliate Scholar and Research Fellow with the Technology and Privacy Project at UC Hastings College of the Law.