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Copyright False Positives

47 Pages Posted: 10 Oct 2013 Last revised: 7 Jan 2014

Ben Depoorter

University of California Hastings College of Law; Ugent - CASLE; Stanford CIS

Robert Kirk Walker

UC Berkeley School of Law

Date Written: October 8, 2013

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.

Keywords: copyright law, enforcement, false positives, automation, bots, economics, litigation costs

JEL Classification: K10, K40

Suggested Citation

Depoorter, Ben and Walker, Robert Kirk, Copyright False Positives (October 8, 2013). 89 Notre Dame L. Rev. 319; UC Hastings Research Paper No. 74. Available at SSRN: https://ssrn.com/abstract=2337684

Ben Depoorter (Contact Author)

University of California Hastings College of Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Ugent - CASLE ( email )

Universiteitstraat 4
Belgium

Stanford CIS ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Robert Kirk Walker

UC Berkeley School of Law ( email )

Boalt Halll
Berkeley, CA 94720
United States

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