In a recent article titled “The Upside of Losing,” Professor Ben Depoorter— an expert on copyright enforcement and litigation theory—takes a position that might seem counterintuitive. 16 SPRING 2014 Published in the Columbia Law Review in April 2013, the article challenges the idea that litigation is pursued only when favorable outcomes can be achieved. Depoorter argues that losing battles are often the ones that lead to social change. He writes: “Unfavorable litigation outcomes can be uniquely salient and powerful in highlighting the misfortunes of individuals under prevailing law, while presenting a broader narrative about the current failure of the legal status quo. The resulting public backlash may slow down legislative trends and can even prompt legislative initiatives that reverse the unfavorable judicial decisions or induce broader reform.” In another recent paper for the Notre Dame Law Review, Depoorter returns to the subject of litigation, especially as it pertains to copyrights. The article, “Copyright False Positives,” co-authored with Robert Kirk Walker ’13, explores how copyright holders deploy new technologies to search for alleged infringements online. While such automated enforcement technologies reduce costs for copyright holders, they fail to factor in the nuances of copyright law or the tenets of fair use. The result is a growing number of “false positives,” which lead to actions against uses that are not actual infringements. False positives, Depoorter says, “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.” There’s no easy fix, he says, but a good place to start is by heightening copyright registration requirements and revising the statutory damage FALSE POSITIVES, WINNING LOSERS, AND BROKEN SYSTEMS PROFESSOR BEN DEPOORTER OFFERS ORIGINAL AND TIMELY ANALYSES OF COPYRIGHT LAW provisions of the Copyright Act to discourage lawsuits based on false positives. In fact, Depoorter says, the entire U.S. Copyright Act of 1976 needs reform. “The consumption and distribution of content is entirely different now, and courts are trying to fit old laws into new circumstances,” he says. “My research shows there is a misalignment between the law and the realities of copyright infringement and enforcement,” Depoorter says. And unless the litigation system is fixed and the Copyright Act rethought, he warns, the law will continue to be broken on a regular and uncontrolled basis.
Hastings Alumni Mag-Spring 2014
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