Norms and Enforcement: The Case Against Copyright Litigation

Abstract

Drawing on socio-psychological literature and new data from an empirical study, this Article posits that copyright litigation faces an impossibility theorem: lawsuits against file sharers cannot simultaneously achieve effective deterrence and promote pro-copyright norms. Anti-copyright norms of file swappers are strengthened when the level of copyright enforcement increases, which results in more downloading whenever enforcement is temporarily suspended. Enforcement has an ambivalent effect on individuals who have no experience with file sharing. Severe sanctions do not have a counterproductive effect on copyright norms of such non-file sharers, yet exposure to information on copyright enforcement reinforces the expectation that others are downloading.

The Article reflects on the lessons learned from the study, in particular with regard to the policy choices that regulators, courts, and copyright-dependent industries face when approaching the widespread use of copyrighted material on file-sharing networks. These options, including criminal prosecutions of digital piracy, copyright education, self-help strategies, and collective licensing, are evaluated in light of the interaction of deterrence and anti-copyright norms.

Keywords: copyright law, litigation, P2P, file sharing

JEL Classification: K10, K11, K42, D70