Kristelia Garcia, Georgetown University
In private law, private rights of action afford rights holders the authority—but not the obligation—to enforce a claim for remedies against a wrongdoer. This allows different rights holders to make different enforcement decisions in different circumstances and vis-à-vis different wrongdoers. In copyright law, the enforcement decision can be especially variable. Some copyright owners enforce against one alleged infringer, while declining to enforce against another. Some copyright owners delegate their enforcement decisions to an algorithm, which may or may not consistently apply the criteria it is given (and which criteria may or may not comply with legal requirements). Others wield the threat of enforcement to accomplish ends either wholly or largely unrelated to the alleged infringement. Relatively little scholarly attention has been paid to the enforcement decision-making process.
Part of the challenge for study in this area is that private rights of action do not require an explanation; copyright owners may elect to enforce, or forbear, for a variety of reasons, or for no reason. Does enforcement necessarily imply wrongdoing? Does lack of enforcement necessarily suggest no harm? Is infringement necessarily harmful? Should we be as concerned about enforcement abuses in private law as we are in public law? More concerned? The theory of selective enforcement developed here reveals the underappreciated role that private parties play in policymaking.
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