My new Essay just published in Columbia Law Review. Available here.
Trespass law is commonly presented as a relatively straightforward doc- trine that protects landowners against intrusions by opportunistic trespass- ers. Though widely supported in academic commentary and scholarship, this conventional viewpoint of trespass law lacks empirical and analytical grounding. In fact, the interests involved in trespass disputes often extend beyond the interests of a private landowner, affecting broad societal interests such as the free flow of information, public safety and health, and similar considerations.
This Essay attempts to align these observations with a doctrine more attuned to reality. To that end, it develops a new doctrinal framework for determining the limits of a property owner’s right to exclude. Adopting the doctrine of fair use from copyright law, the Essay introduces the concept of “fair trespass” to property law doctrine. When deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner’s property interest.
The main advantages of this proposal are twofold. First, this novel doctrine more carefully weighs the interests of society in access against the interests of property owners in exclusion. Second, by replacing the existing patchwork of ad hoc situations where courts excuse trespassory acts, this proposal provides a more coherent and consistent context in which to adjudicate trespass conflicts. By developing a balancing test to assess trespass claims, the proposed doctrine seeks to protect the rights of property owners on the basis of a more explicit and predictable framework, while at the same time safe- guarding the societal interests in access.:
Ben Depoorter is a graduate of Yale Law School. He also holds a JD (1999) and PhD (2003) from Ghent University and a Master’s degree from the University of Hamburg (2001). He completed his studies at Yale Law School (2003) on a full scholarship from the prestigious Belgian American Educational Foundation (BAEF). As an Oscar Cox Fellow at Yale, Depoorter served as an editor of the of the Yale Journal of Regulation and conducted research as a John M. Olin Fellow in Law, Economics, and Public Policy. He was a Santander Research Fellow at U.C. Berkeley and a recipient of a Fulbright scholarship. He was a visiting researcher at the Berkeley Center for Intellectual Property Law & Technology at U.C. Berkeley and at Stanford Law School.
Professor Depoorter’s scholarly interests include property law, litigation theory, and intellectual property law, with an emphasis on issues surrounding new technologies.
His recent and forthcoming articles include “Fair Trespass”, 111 Columbia Law Review, (forthcoming 2011); “Copyright Backlash”, 84 University of Southern California Law Review (forthcoming, 2011); “Law in the Shadow Bargaining: The Feedback Effect of Civil Settlements”, 95 Cornell Law Review 957 (2010); “Technology & Uncertainty: The Shaping Effect on Copyright Law”, 157 the University of Pennsylvania Law Review 1830 (2010), and “Horizontal Political Externalities: the Supply and Demand of Disaster Management”, 56 Duke Law Journal 101 (2006).
His interdsiciplnary work on anticommons property theory is widely cited in American law reviews and international peer-reviewed journals and was featured in 2010 in the New Yorker magazine. These writings include “Fragmentation in Property: Towards a General Model” (with F. Parisi and N. Schulz), 159 Journal of Institutional and Theoretical Economics 594 (2003); “Duality in Property: Commons and Anticommons” (with F. Parisi & N. Schulz), 25 (4) International Review of Law & Economics 578 (2006); “Fragmentation of Property Rights: A Functional Explanation of Servitude Law” (with F. Parisi), 3 (1) Global Jurist Frontiers, Article 2 (2003); “Never Two Without Three: Commons, Anticommons and Semicommons”, 5 Review of Law & Economics, issue 1 (2009) (w/Jef De Mot and Enrico Bertachinni); “Fair Use and Copyright Protection: A Price Theory Explanation” (with F. Parisi), 21 (4) Review of Law & Economics, 453 (2003).
Professor Depoorter has presented his writings widely, including at the Berkeley Center for Intellectual Property & Technology seminar , Yale Law School Olin workshop series, Stanford University’s Intellectual Property Law Conference, the American Association of Law & Economics Conference, Washington University’s Center for Law, Innovation & Economic Growth and at conferences and seminars at Boston College Law School, Boston University Law School, the University of Connecticut School of Law, Duke Law School, George Mason Law School, the University of Pennsylvania Law School, University of Texas School of Law, University of Toronto Law School, the University of Illinois at Urbana-Champaign College of Law, and Yale Law School.
Professor Depoorter has been a visiting professor at Boston University School of Law, Duke Law School, and Haifa University.
Courses Taught: Property Law, Intellectual Property, Law and Economics, IP Seminar, Copyright Law, Comparative Law, Antitrust law, Tort Law
Here is the link to the paper.
This is the abstract:
In the past decade the entertainment industry has waged a legally very successful campaign against online copyright infringements. In a series of high profile decisions, content industries persuaded courts to accept expansive interpretations of contributory enforcement, to create novel doctrines of copyright infringement, and to apply broad interpretations of statutory damage provisions. Many private file-sharers, technology companies, university administrators and Internet service providers have felt the reach of this litigation effort. Yet a significant empirical anomaly exists: even as the copyright industry has ramped up the level of deterrence, online copyright infringements continue unabated.
Why has the legal battle against file-sharers been so ineffective? The most straightforward explanation is that infringers are not deterred, either because the probability of getting caught remains remote or because the sanctions are not sufficiently salient. If that is the case, the expansive statutory damage award remedies in recent decisions such as Capitol Records v. Thomas-Rasset and Sony BMG v. Tenebaum, carry renewed promise for the entertainment industry.
In this Article we claim that this deterrence-based approach will prove futile and even counterproductive to the goals of copyright holders. We argue that copyright law faces conditions similar to Prohibition and other historical episodes of enforcement failure. When infringements are widespread, effective deterrence cannot be attained without raising enforcement to levels that undermine the support for the underlying rules. As a result, enforcement has the inadvertent effect of moving behavior in the opposite direction from that intended by the law. In the context of copyright law, enforcement has increased the gap between the social and legal perceptions of copyright law. Because file sharers, as a group, perceive copyright litigation as excessive, this inadvertently strengthens opposition to the legally protected interests of copyright law.
To further our understanding of the interplay between enforcement and public attitudes, we conduct two empirical studies on norms and copyright law. The results confirm that copyright enforcement is a double- edged sword. While stringent sanctions have a modest deterrent effect on file-sharing behavior, they increase anti-copyright sentiments among frequent offenders. This raises a spectacular challenge for copyright enforcement-the more copyright owners push to step up sanctions for copyright infringements; the more the public resents the protected rights. Consequently, stepping up sanctions tends to increase—rather than decrease—the rate and frequency of infringing activities. Our key results suggest therefore, that more stringent copyright enforcement will further erode respect for copyrights and may prove counterproductive to copyright owners.
Here is the abstract: This article advances a proposal that increases access to justice for valuable lawsuits that are currently discouraged by litigation costs. Our proposal converts claims with negative expected values into positive expected value claims by implementing a novel system involving flexible conditional multipliers. Our proposal has two components. First, under the proposed system a plaintiff is allowed to select a damage multiplier that determines the amount of damages the plaintiff receives if the litigation is successful. Second, courts select cases for litigation randomly with a probability inverse to the multiplier selected by the plaintiff. Full download available