Monetizing Infringement

66 Pages Posted: 31 Mar 2020

See all articles by Kristelia Garcia

Kristelia Garcia

University of Colorado Law School

Date Written: March 12, 2020

Abstract

The deterrence of copyright infringement and the evils of piracy have long been an axiomatic focus of both legislators and scholars. The conventional view is that infringement must be curbed and/or punished in order for copyright to fulfill its purported goals of incentivizing creation and ensuring access to works. This Essay proves this view false by demonstrating that some rightsholders don’t merely tolerate, but actually encourage infringement, both explicitly and implicitly, in a variety of different situations and for one common reason: they benefit from it. Rightsholders’ ability to monetize infringement destabilizes long-held but problematic assumptions about both rightsholder preferences, and about copyright’s optimal infringement policy.

Through a series of case studies, this Essay describes the impetuses and normative implications of this counterintuitive—but not so unusual—phenomenon. Recognition of monetized infringement in copyright is interesting not only for its unexpectedness, but also for the broader point that its existence suggests: we have an impoverished descriptive account of why some laws operate the way that they do. This is particularly unsettling in an area like copyright, where advocates are sharply divided along policy lines. This Essay is an important first step toward a positive theory of copyright—one that recognizes the underappreciated role, both positive and negative, that private parties play in policymaking.

Keywords: copyright, intellectual property, law and economics, infringement

JEL Classification: K00, K10, K11

Suggested Citation

Garcia, Kristelia, Monetizing Infringement (March 12, 2020). UC Davis Law Review, Vol. 54, 2020; U of Colorado Law Legal Studies Research Paper No. 20-10. Available at SSRN: https://ssrn.com/abstract=3553453

Kristelia Garcia (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80304
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
51
Abstract Views
352
rank
411,076
PlumX Metrics