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Norms and Enforcement: The Case Against Copyright Litigation

54 Pages Posted: 20 Sep 2006 Last revised: 12 Nov 2012

Ben Depoorter

University of California Hastings College of Law; Ugent - CASLE; Stanford CIS

Sven Vanneste

Ghent University-Universiteit Gent - Department of Developmental, Personality and Social Psychology

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

Suggested Citation

Depoorter, Ben and Vanneste, Sven, Norms and Enforcement: The Case Against Copyright Litigation. Oregon Law Review, Vol. 84, No. 4, p. 1127, 2006. Available at SSRN: https://ssrn.com/abstract=931415

Ben Depoorter (Contact Author)

University of California Hastings College of Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Ugent - CASLE ( email )

Universiteitstraat 4
Belgium

Stanford CIS ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Sven Vanneste

Ghent University-Universiteit Gent - Department of Developmental, Personality and Social Psychology ( email )

Ghent, B-9000
Belgium

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