Defining Overcriminalization Through Cost-Benefit Analysis: The Example of Criminal Copyright Laws

Abstract

Commentators readily identify the negative consequences associated with overcriminalization. Yet it is not always obvious when a proposed law might have that result. One predictive method that can be used during the legislative process is to define "overcriminalization" in a way that identifies a proposed criminal statute as problematic.

As a starting point in devising a definition, I suggest that a law overcriminalizes when the costs of treating conduct as a crime exceed the benefits of the new crime. Working within the consequentialist construct, the new criminal copyright infringement law is used to illustrate how a cost-benefit methodology might work. The analysis indicates that the costs of imposing criminal punishment on copyright infringers may exceed its benefits.

Although this type of cost-benefit analysis necessarily involves weighing incommensurable factors, the proposed definition merits further attention and refinement. Considering the full effects of a proposed law acknowledges that criminal laws impose costs beyond the expenses of enforcement, incarceration, and lost income. The cost-benefit screening device makes the process of criminalizing conduct more transparent. Another advantage is that resulting laws are likely to be tailored to the specific harm that Congress seeks to prevent. In identifying a range of considerations that might otherwise escape attention, the definitional strategy may also result in less reliance on criminal law, thus avoiding overcriminalization.

Keywords: criminal law, copyright law, overcriminalization

JEL Classification: K14, K42