The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory
54 Pages Posted: 9 Jan 2009
Date Written: January 6, 2009
This inquiry considers whether the new crime of copyright infringement, which prohibits personal, noncommercial copying, is justified by retributive and utilitarian theories of punishment - to enforce a shared moral standard or to prevent harm to the community. The harm rationale, to prevent diminishing the incentive to create expressive works, provides only an equivocal basis for criminalization. The moral consensus that would condemn personal copying of music, software, books, and movies is far from robust. The new criminal infringement offense thus attempts to create a new social norm against copying. But success at creating a social norm that condemns such copying may also reduce creative activities. Overdeterrence created by enforcement actions can chill lawful use of copyrighted material and ultimately reduce the production of creative expression, thus undercutting the very goal the law was intended to achieve. The new criminal provision also raises significant issues regarding enforcement and the legitimate use of the criminal law.
Keywords: copyright, criminal infringement, criminal law, deterrence, harm, infringement, morality, norms, personal copying, retribution, utilitarian theory
Suggested Citation: Suggested Citation