Depoorter (2019)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Depoorter (2019)
Title: Copyright Enforcement in the Digital Age: When the Remedy is the Wrong
Author(s): Depoorter, B.
Year: 2019
Citation: Depoorter, B. (2019) Copyright Enforcement in the Digital Age: When the Remedy is the Wrong. 66 UCLA L. Rev. 400
Link(s): Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The study consists of two parts: first, a docket-study of docket records from a random sample of 957 copyright disputes filed from 1 January 2005 to 31 December 2008, and; second, a case analysis of all 102 judicial decisions on copyright statutory damages between 2005 to 2008.
Data Type: Primary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 1 January 2005 - 31 December 2008
Funder(s):

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.”

Main Results of the Study

Plaintiff’s request statutory damages in 90% of pleadings, as opposed to seeking recompense for the actual harm suffered. Similarly, plaintiff’s are likely to seek enhanced statutory damages due to alleged wilful infringement (in 81% of cases), a phenomenon that is consistent across subject-matters and litigants (large and small). However, and regardless of the frequency of these claims, courts only award enhanced statutory damages in approx. 2% of cases.Claims for statutory damages are dominated by movie, TV, music, and software industries (accounting for over 70% of all cases surveyed), most of which result in default judgements (85%).Despite the prevalence of claims for statutory damages, the author finds that almost half of the cases surveyed contain sparse information as to what qualifies as “wilful” infringement, with many cases (>20%) providing no information at all as to how they determined the defendant’s actions were wilful.

Policy Implications as Stated By Author

The study urges reform of the statutory damage framework, of which the author finds is being abused by opportunistic plaintiffs. They suggest deterring this by (i) increasing the costs of overclaiming (e.g. exaggerated or inflated statements about the harm caused) and (ii) reducing the benefits of overclaiming. This may be achieved by introducing guidelines and standards (that e.g. reduce the statutory award range), reducing outliers, and removing the elective statutory option upon proof of profits or plaintiff’s damages (evidencing actual harm caused).



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

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