Copyright Backlash

Abstract

In the past decade the entertainment industry has waged a legally very successful campaign against online copyright infringements. In a series of high profile decisions, content industries persuaded courts to accept expansive interpretations of contributory enforcement, to create novel doctrines of copyright infringement, and to apply broad interpretations of statutory damage provisions. Many private file-sharers, technology companies, university administrators and Internet service providers have felt the reach of this litigation effort. Yet a significant empirical anomaly exists: even as the copyright industry has ramped up the level of deterrence, online copyright infringements continue unabated.

Why has the legal battle against file-sharers been so ineffective? The most straightforward explanation is that infringers are not deterred, either because the probability of getting caught remains remote or because the sanctions are not sufficiently salient. If that is the case, the expansive statutory damage award remedies in recent decisions such as Capitol Records v. Thomas-Rasset and Sony BMG v. Tenebaum, carry renewed promise for the entertainment industry.

In this Article we claim that this deterrence-based approach will prove futile and even counterproductive to the goals of copyright holders. We argue that copyright law faces conditions similar to Prohibition and other historical episodes of enforcement failure. When infringements are widespread, effective deterrence cannot be attained without raising enforcement to levels that undermine the support for the underlying rules. As a result, enforcement has the inadvertent effect of moving behavior in the opposite direction from that intended by the law. In the context of copyright law, enforcement has increased the gap between the social and legal perceptions of copyright law. Because file sharers, as a group, perceive copyright litigation as excessive, this inadvertently strengthens opposition to the legally protected interests of copyright law.

To further our understanding of the interplay between enforcement and public attitudes, we conduct two empirical studies on norms and copyright law. The results confirm that copyright enforcement is a double-edged sword. While stringent sanctions have a modest deterrent effect on file-sharing behavior, they increase anti-copyright sentiments among frequent offenders. This raises a spectacular challenge for copyright enforcement-the more copyright owners push to step up sanctions for copyright infringements; the more the public resents the protected rights. Consequently, stepping up sanctions tends to increase - rather than decrease - the rate and frequency of infringing activities. Our key results suggest therefore, that more stringent copyright enforcement will further erode respect for copyrights and may prove counterproductive to copyright owners.

Keywords: Copyright Law, Expressive law, Social Norms, Enforcement

JEL Classification: K10, K11, K42, D70