ABSTRACT
Private rights holders frequently engage in selective enforcement-that is, they elect to enforce against some wrongdoers, and not to enforce against others, under different, or even under similar, circumstances. The conventional wisdom assumes that when we observe enforcement, there has been an economic loss, whereas when we observe nonenforcement, there either hasn’t been an economic loss, or the rights holder lacks sufficient resources to pursue a claim. Utilizing copyright law as a case study, this Article challenges these assumptions by showing that some rights holders elect to enforce even when they haven’t suffered an economic loss; just as some rights holders elect not to enforce even though they have both experienced a tangible loss, and possess adequate resources to pursue a claim. Examination of these atypical enforcement decisions highlights the heterogeneity of rights holders, and improves our understanding of the work that a legal regime is and isn’t doing in the relevant market.
Through analysis of a broad-ranging set of enforcement decisions made by a particularly mercurial group of rights holders – copyright owners – this Article explores the implications of selectivity in private enforcement, both for private rights holders and for the public, and updates our conventional understanding of private enforcement as serving solely a compensatory, deterrent, or efficiency function. While not without its potential downsides, selectivity plays two additional and underappreciated roles in private law: First, it recognizes dignitary harm, and reinforces rights holder autonomy, without regard to economic loss. Second, it reveals valuable private information that can help lawmakers improve statutory rights and remedies. These insights are applicable across the private law spectrum, and suggest that private enforcement is a subject ripe for further study.
García, Kristelia, Selective Enforcement (August 19, 2024), 113 Georgetown Law Journal (forthcoming).
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