Copyright Enforcement in the Digital Age: When the Remedy is the Wrong

49 Pages Posted: 19 Apr 2019

See all articles by Ben Depoorter

Ben Depoorter

University of California Hastings College of Law; Ugent - CASLE; Stanford Law School Center for Internet & Society

Date Written: April 17, 2019

Abstract

Statutory damage awards are controversial in copyright law. To some, statutory damages are indispensable to enable the pursuit of meritorious copyright infringement claims that otherwise are too costly to pursue. Others are convinced that the availability of statutory damages tempts plaintiffs into asserting dubious infringement claims in order to obtain generous settlement concessions from risk averse defendants. In light of these contrasting viewpoints, we face the important policy question whether statutory damages should be redesigned for the digital age or, to the contrary, be retained in their current form, given the difficulties of enforcing copyrights online.

This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent of cases where plaintiffs obtain a favorable verdict.

The findings suggest that remedy overclaiming in copyright serves strategic purposes. For instance, by highlighting the outer range of enhanced statutory awards in complaints, plaintiffs leverage the risk aversion of defendants to induce generous settlement concessions. In order to curb opportunistic uses of the statutory damages, I provide policy suggestions that would make remedy overclaiming more costly to plaintiffs and less threatening to defendants.

Keywords: copyright, statutory damages, enforcement

JEL Classification: K1, K19, K42

Suggested Citation

Depoorter, Ben, Copyright Enforcement in the Digital Age: When the Remedy is the Wrong (April 17, 2019). UCLA Law Review, Vol. 66, 2019, UC Hastings Research Paper No. 320, Available at SSRN: https://ssrn.com/abstract=3374048

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 Law School Center for Internet & Society ( email )

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

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