Copyright False Positives

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. INTRODUCTION In the geography of intellectual property law, copyright occupies a vast and verdant terrain, but its borders are poorly marked. The imprecise delineation of individual copyrights is both an intentional feature and an inherent flaw of the system: copyrights take minimal effort to acquire, (1) but the metes and bounds of the interests staked are often uncertain. (2) Unlike patents, where property rights are restricted to the claims contained in a successfully prosecuted application, (3) or trademark law, which only protects registered marks actually used in commerce, (4) copyrights inure at the moment of fixation (5) without any procedural or substantive inquiry into their scope. (6) As such, an author (7) of a putatively original work does not know, ab initio, the amount of protected expression contained in this work, (8) and so is unable to assess accurately the strength of her property claims. (9) Her original expression is protected, but the amount of originality her expression contains is often not readily discernible from the work on its face. (10) Similarly, it is often difficult to determine what part of another author's work is protected without extensive analysis of the substance of the work and the circumstances surrounding the work's creation. Every form of creative expression--from the crudest imitation to the highest reaches of originality--draws in part from prior art, both in form and in substance. (11) As a result, the boundaries of any copyright are vague and vulnerable to interpretation and second-guessing. Such lacunae, in combination with other factors, (12) give rise to an abundance of copyright enforcement false positives, (13) where rights holders erroneously believe that their interests in a particular work extend beyond the bounds of what is actually protected. (14) These false positives often motivate copyright owners to seek enforcement of rights that are non-existent or outside the scope of copyright. (15) Such misguided enforcement actions impose significant social costs. (16) For example, automated enforcement technologies frequently send cease-and-desist letters or DMCA notice-and-takedown requests (17) for non-infringing uses. (18) In theory, such actions would seem relatively harmless given the numerous legal means available for alleged infringers to contest these erroneous claims. (19) In practice, however, even if successfully challenged by alleged infringers, the litigation costs (20) involved in correcting enforcement errors impose a burden on creative expressions (21) and the rightful exercise of public rights and copyright exceptions. (22) Second, and even more problematic, are instances where transaction costs and risk aversion inhibit wrongly accused infringers from opposing copyright infringement actions. …