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A Quick and Inexpensive System for Resolving Digital Copyright Disputes

A Quick and Inexpensive System for Resolving Digital Copyright Disputes

Lemley, Mark A. and Reese, R. Anthony, "A Quick and Inexpensive System for Resolving Digital Copyright Disputes" (March 24, 2004). UC Berkeley Public Law Research No. 525682.

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Abstract

    We have argued elsewhere that peer-to-peer (p2p) file sharing poses significant new challenges to the enforcement of copyright law. Copyright owners' initial response to these challenges - to try to shut down the technologies that facilitate file sharing - is bad for society. We suggested that it would be preferable to lower enforcement costs for copyright owners by making dispute resolution by copyright owners against direct infringers quick and cheap, so that copyright owners would be more inclined to pursue such direct infringers instead of suing innovators. While enforcement costs are likely always to be too great to allow pursuit of every infringer, lower costs would allow for enforcement against more infringers, increasing any given infringer's chance of being sued. In this article, we explain how such a dispute resolution system might work, and propose a draft amendment to the copyright act to implement the system.

Facts on copyright

  • Copyright subsists for a variety of lengths in different jurisdictions, with different categories of works and the length it subsists for also depends on whether a work is published or unpublished. In most of the world the default length of copyright for many works is either life of the author plus 50 years, or plus 70 years. Copyright in general always expires at the end of the year concerned, rather than on the exact date of the death of the author.
  • Different countries impose different tests, although generally the requirements are low. In the United Kingdom there has to be some 'skill, originality and work' which has gone into it. However, even fairly trivial amounts of these qualities are sufficient for determining whether a particular act of copying constitutes an infringement of the author's original expression.
  • One might be able to obtain a patent for the method, but that is a different area of law. Compilations of facts or data may also be copyrighted, but such a copyright is thin. It only applies to the particular selection and arrangement of the facts, not to the particular facts themselves. In some jurisdictions databases are expressly covered by statute. In some cases, ideas may be capable of intelligible expression in only one or a limited number of ways. Therefore even the expression in these circumstances is not covered. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. Merger is often pleaded as an affirmative defense to charges of infringement. That doctrine is not necessarily accepted in other jurisdictions.

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