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Ben Depoorter - UC Hastings College of the Law. San Francisco, CA, US

Ben Depoorter

Distinguished Professor of Law | UC Hastings College of the Law

San Francisco, CA, UNITED STATES

Email: depoorter@uchastings.edu / 415-565-4675 / Office 208-198


Professor Depoorter is Sunderland Chair at the University of California, Hastings College of the Law, EMLE coordinator at CASLE Ghent University, and Affiliate Scholar at Stanford Law School’s Center for Internet at Society. He is a frequent visiting professor at Berkeley Law, teaching in the LL.M.’s Professional Track.

Copyright law is one of his major areas of expertise, where Depoorter has investigated a variety of questions relating to enforcement of intellectual property law in the digital era, including whether and how fees-shifting can be used to align incentives between authors in way that promote creativity, how punitive approaches to copyright law adversely impact copyright social norms, and how automated enforcement measures create false positives.

Litigation theory is Depoorter’s other major area of expertise, where he has investigated the strategic pursuit of losing litigation by interest groups that seek to mobilize public and political support, examined the feedback effect of tort settlements on legal precedent, and described the shaping effect of legal uncertainty and court delay.

Recent publications includes “The Upside of Losing", “Fair Trespass”, Columbia Law Review (2014, 2011); "Using Fee Shifting to Promote Fair Use and Fair Licensing", California Law Review (2015); "Copyright Backlash", Southern California Law Review (2011); "Law in the Shadow Bargaining: The Feedback Effect of Civil Settlements", Cornell Law Review (2010); "Technology & Uncertainty: The Shaping Effect on Copyright Law", the University of Pennsylvania Law Review (2010), and "Liquidated Damages and Moral Hazard: An Experiment", JITE (2016). His interdisciplinary work on anticommons property is widely cited in American law reviews and international peer-reviewed journals and was featured in a 2010 issue of the New Yorker.

Professor Ben Depoorter completed his studies at Yale Law School (2003, 2009) on a full scholarship from the BAEF. As an Oscar Cox and Olin Fellow at Yale, Depoorter served as an editor of the Yale J. Reg. He was a Santander Research Fellow at U.C. Berkeley and a recipient of a Fulbright scholarship.

Before becoming a law professor, Depoorter toured around Europe with his indierock band releasing several LP records full of sad songs. In line with local start-up community expectations, Depoorter co-founded a tennis analytics company that provides scouting data to the world’s top professional tennis players.

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Areas of Expertise (10)

Copyright Law

Property Law

Law and Economics

Intellectual Property

International Intellectual Property Law

Comparative Law

Litigation Theory

Behavioural Law and Economics

Trademark Law

Law & Digital Technology

Accomplishments (8)

Graduation Speaker (professional)

U.C. Berkeley Law, P.LL.M Program, 2016

Sunderland Chair (professional)


Awarded by University of California, Hastings College of the Law

Inaugural Roger Traynor Research Chair (professional)


Awarded by UC Hastings College of the Law.

Roger Traynor Scholarship Prize (professional)


Awarded by UC Hastings College of the Law.

Oscar Cox Scholarship (professional)


Awarded by Yale Law School.

National Science Grant (professional)


Awarded by Belgium's Federal Institute for Science.

Olin Fellow in Law, Economics & Public Policy (professional)


Awarded by Yale Law Schoo.l.

Belgian American Educational Foundation (professional)


study grant for research in the United States

Education (5)

Yale Law School: J.S.D., Law 2011

Oscar Cox Scholarship

Yale Law School: LL.M., Law 2003

Belgian American Education Foundation (BAEF) Fellow Fulbright Scholar Fellow, Olin Center in Law, Economics and Public Policy, Yale Law School Editor, Yale Journal on Regulation

Ghent University: Ph.D., Economics 2003

Dissertation: ‘Fragmentation of Property Rights: The Law and Economics of the Anticommons’

University of Hamburg: M.A., Law and Economics 1999

Awarded Prize of Academic Excellence for best Master Thesis: “Servitude Policy and Conceptions of Property."

Ghent University, School of Law: J.D., Economic Law 1998

Fellow at the Center for Information Technology and Law

Affiliations (3)

  • Stanford Center for Internet and Society : Affiliate Scholar (Since 2012)
  • Ghent University : Professor (Docent) (Since 2003)
  • Erasmus Mundus Master Program in Law and Economics : Officer of Quality Assurance and Curriculum (Since 2007)

Media Appearances (5)

Stolen Bases: A Teenager Argues That a Big-League Ballclub Stole His Work

SFWeekly  online


In trademark law, especially, it's good to be the king. In the mid-1990s Congress expanded the scope of the law to include "dilution." This gives big companies (like professional sports franchises) a tool most 16-year-olds don't have; they can claim interlopers are "diluting" their established, famous marks. There is some cold comfort for the little guy whose stuff is copied or stolen by the big guy: "You do get free publicity," says UC Hastings professor Ben Depoorter. "It could be the best thing that happens to you."...

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BART's Monster-Sized Trademark Claim: A Tale of Two Logos

SF Weekly  online


BART's logo is not in the public domain, and even local T-shirt artists who glean BART imagery do so at their own legal peril. But, in claiming it can clamp down on moviemakers' First Amendment rights, BART is taking things rather far indeed, says UC Hastings law professor Ben Depoorter. "Movies are commercial — but they have a lot of free speech purposes," he says. "If I were making a Saturday Night Live sketch about BART, what they're saying is I would have to ask permission? No, that would quell free speech. ... There's no potential for confusion. It's not like the movie is selling BART-related goods."...

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Does US Legal Ruling Spell the End for Online Porn?

International Business Times  online


They argue that IP addresses can be shared by computers belonging to different people on the same network, or can even be hijacked by hackers. "If you're filing three lawsuits per day, that very much looks like an abusive model," Ben Depoorter, a professor at the University of California, Hastings College of Law, told the magazine. Recently, anti-"lawsuit trolling" activists hailed an important victory when a US High Court judge ruled that internet service providers do not have to provide the personal details of users accused of piracy...

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The Biggest Filer of Copyright Lawsuits? This Erotica Web Site

The New Yorker  online


Ben Depoorter, a professor at the University of California, Hastings College of Law, said that there is no U.S. government enforcement agency tasked with policing copyright infringement; the law is designed primarily for private civil lawsuits, like the ones that Malibu Media has filed. But some judges may question whether the company’s motive is to make money or to deter piracy, he said: “If you’re filing three lawsuits per day, that very much looks like an abusive model. Some judges may say this looks like a business model. On the other hand, infringement is infringement.”...

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'Don't Be Fat Like Her!' Plus-size blogger's rage after diet company stole her image to promote products

Daily Mail  online


Still, Venus Factor could be held liable for 'stealing' the photo whether the company was directly responsible or not, according to law professor, Ben Depoorter because it’s name appears on the spam adverts. He says Mrs Cateyes could make a claim of copyright infringement - as it was her husband who took the shot - or make another on the grounds of publicity rights. By law, no one can market your personality or image to sell a product. 'It’s meant to help celebrities, but it also applies to non-celebrities,' Mr Deporter [sic] explained. 'It’s just less straightforward than the copyright route because it’s harder to demonstrate harm for a non-celebrity.'...

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Event Appearances (5)

Why Do People Obey Laws: A Field Experiment

UC Berkeley Law Faculty Workshop  Berkeley, CA.


Marginal Deterrence in Copyright Enforcement

U.C. Berkeley Law, Symposium of the Berkeley Sports & Entertainment Law Journal  Berkeley, CA.


Hypothetical Damages in Copyright Law

EMLE Annual Conference on Law and Economics  Bologna University, Italy


The Dangerous Undertaking: How Courts Should Approach Aesthetic Judgements in Copyright Law

Workshop on Intellectual Property Papers in Progress (WPIP) Annual Conference  Santa Clara, CA.


Fair Use and Goldieblox v. Beastie Boys

San Francisco Bay Area Intellectual Property Inn of Court  San Francisco


Selected Articles (5)

Copyright False Positives

Notre Dame Law Review


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.

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How Law Frames Moral Intuitions: The Expressive Effect of Specific Performance

Arizona Law Review


Some contract theorists favor specific performance as the appropriate remedy for contract breach. According to ethical theorists, specific performance reinforces the moral obligation that promises should be kept. Some economists argue that specific performance promotes efficient contract bargaining. This Article challenges this conventional wisdom, showing that moral evaluations and the willingness to bargain are themselves strongly affected by whether specific performance is available as a default remedy or not. Our insight is based on a novel, original empirical study. This Article presents the results of an experiment that measures and compares decisions and motivations involved with the performance, breach, and enforcement of valid legal contracts that participants signed with each other. We provided one group of participants with a default remedy of specific performance while another group could prevent the breach of contract without relying on a legal default. We observed that, when specific performance was the default remedy, participants decided to sacrifice a substantial part of their earnings in the experiment in order to obstruct an efficient breach. Our results indicate that the specific performance default triggered conflicting moral intuitions about contract breach among contracting parties. Specific performance made the ethical norm to adhere to the contract more salient to promisees, while promisors focused on the efficiency of the breach. Based on these findings, our study challenges fixed, deontological viewpoints on the immorality of contract breach. In providing a dynamic and empirically grounded understanding of the ethics of contract breach, our study highlights the influence of legal frames on moral intuitions. Our findings also question the alleged efficiency benefits of specific performance. By inducing deontological rather than utilitarian intuitions about contract breach, a specific performance default likely has the effect of making negotiations involving efficient breaches more difficult.

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The Upside of Losing

Columbia Law Review


Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likely to establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide substantial benefits. Unfavorable litigation outcomes can be uniquely salient and powerful in highlighting the misfortunes of individuals under prevailing law, while presenting a broader narrative about the current failure of the legal status quo. The resulting public backlash may slow down legislative trends and can even prompt legislative initiatives that reverse the unfavorable judicial decisions or induce broader reform. This analysis revises some conventional wisdom about litigation. First, while it is traditionally understood that legal reform activists must persuade courts to recognize unattended rights or to confirm new rights and activist positions, the analysis here suggests that social changes can be obtained in litigation without requiring the involvement of courts as policymakers. Moreover, passive courts and judicial deference in fact strengthen the mobilizing effect of litigation by clearly shifting the burden to legislators and their constituents. Second, the dynamics of successful defeat in litigation shed new light on the costs and benefits involved with litigation. In the proposed framework, a plaintiff’s decision to litigate rests not simply on the probability of success but also on a tradeoff between the potential costs of a negative precedent and the political benefits obtained in defeat. Third, the mobilizing potential of adverse court decisions presents a fascinating conflict between the immediate interests of the actual plaintiff and of the litigation entrepreneur or intermediary that supports the litigation with an eye on the underlying long-term goals of a social cause. Finally, the potential benefits of adverse outcomes refute some of the criticisms about the limitations and downsides of pursuing social change through courts.

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Copyright Fee Shifting: A Proposal to Promote Fair Use and Fair Licensing

UC Berkeley Public Law Research Paper


The fair use doctrine seeks to facilitate socially optimal uses of copyrighted material. As a practical matter, however, cumulative creators, such as documentary filmmakers and many contemporary musicians, are often reluctant to rely on the fair use doctrine because of its inherent uncertainty, the potentially harsh remedies for copyright infringement, and the practical inability to obtain effective pre-clearance rights. Moreover, copyright owners have no obligation under existing law to respond to a cumulative creator’s inquiry. Thus, a familiar refrain in professional creative communities is “if in doubt, leave it out.” In this Article we propose a novel mechanism that would afford a limited, cost-effective process for pre-clearing works, promote fair negotiation over cumulative uses of copyrighted works, and reduce the exposure of cumulative creators from the inherent risks of relying on copyright’s de minimis and/or fair use doctrine. Under this mechanism, a cumulative creator has authority to make a formal offer of settlement to use copyrighted material for a project. If the copyright owner does not respond to the offer, the cumulative creator would be permitted to use the work provisionally by paying the settlement amount into escrow. If the copyright owner rejects the proposed license fee and sues for infringement, the copyright owner will bear the cumulative creator’s litigation costs (1) if the court determines that the use of the material qualifies as fair use or (2) if the court determines that the fair use doctrine did not excuse the use but where the cumulative creator’s offer of settlement (the proposed license fee) exceeded the amount of damages that the court determines to be appropriate. In the former case, the escrow amount is returned to the cumulative creator. In the latter case, the copyright owner receives the infringement award from the escrow account and the remainder returns to the cumulative creator.

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The Cross-Atlantic Law and Economics Divide: A Dissent

University of Illinois Law Review


While law and economics has become an established mode of analysis within the United States, it is generally asserted that law and economics "barely exists" in European countries. In order to support this claim, scholars have looked to various metrics, such as hiring of economists by law schools, publications in major journals, and law and economics conference participation, all of which suggest the United States as being significantly more advanced than Europe in its development of law and economics. This Article states that the gap between the United States and Europe regarding the development of law and economics is greatly exaggerated. We argue that, due to the failure to control for institutional differences between academics in the United States and Europe, existing metrics fail to adequately capture the rate at which law and economics has developed in Europe. In order to appreciate the contribution of law and economics in Europe, we emphasize the distinction between fundamental and applied domestic contributions to a field of scholarship. We suggest that a significant body of European law and economics scholarship fits in the applied group. Moreover, given the institutional obstacles to interdisciplinary research at European law schools, specifically the lack of incentives to produce such scholarship, the more puzzling question is why law and economics is practiced at European law schools as much as it is today. We find that the field of economic analysis of law has inspired impressive entrepreneurial efforts in Europe. The accomplishments of the law and economics movement in Europe are unfairly neglected when measuring scholarly productivity without accounting for institutional differences in educational markets.

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