Copyright False Positives
University of California Hastings College of Law; Ghent University - Center for Advanced Studies in Law & Economics
Robert Kirk Walker
Donahue Fitzgerald LLP; University of California Hastings College of the Law
October 8, 2013
89 Notre Dame L. Rev. 319
UC Hastings Research Paper No. 74
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.
Number of Pages in PDF File: 47
Keywords: copyright law, enforcement, false positives, automation, bots, economics, litigation costs
JEL Classification: K10, K40
Date posted: October 10, 2013 ; Last revised: January 7, 2014
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