Legal Theory Blog

Copynorms and Deterrence

Copynorms are informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
Introduction
Marci Hamilton has a thoughtful piece on Findlaw entitled Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do. Here is an excerpt:
While technology did tend to facilitate illegal downloading, it did not pose infinite obstacles to figuring out who was committing these copyright crimes; universities and ISPs alike tracked their users in certain ways. Although the industry will continue to work on improving the technological protection for works on the web, for now, the courts will serve them quite well. That goes to show that, with respect to copyright, new rules are not needed; just enforcement of the old. We were never living in a true legal vacuum, as the “Information Wants to Be Free” contingent suggested; we were living in an enforcement vacuum instead, and that is now changing, as violators are being hunted down.

Even the hunt itself has had a chilling effect. Knowing that one is committing a crime, and may be caught, is scary indeed. Students will back off of illegal copying once they learn that the free ride was an illusion; and if they don’t, many parents will step in to ensure that their children don’t earn a criminal record along with their college diploma.

Before I go any further, I should make two points. First, I am in favor of copyright laws–although I think that current copyright terms are clearly excessive. Second, I believe that illegal music downloading is wrong; a virtuous citizen obeys the laws even when she disagrees with their correctness–except in extreme cases.

File Sharing and Shoplifting
I am not so sure that Hamilton is right when she argues that the music industry should sue college students for illegal music downloading. Her argument depends on the proposition that the RIAA’s campaign of civil litigation against file sharing will have a substantial deterrence effect. She supports that argument with an analogy between shoplifting and music downloading. Here is the crucial passage:

The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught.

Of course, technological “locks” won’t be perfect, and some level of crime will remain. But here, again, the shoplifting analogy is instructive. Stores do not lock up every item they offer to prevent shoplifting. Instead, they post signs saying shoplifting is a crime, monitor their customers, and press charges against individual shoplifters. Despite all this, retail stores have had to build into their profit picture losses that will result from undetected shoplifting.

But there is a real difference between the two. Although a pro-shoplifting ethic may emerge from time to time in isolated social groups and many children and teenagers may fail to appreciate nature of shoplifting, the incidence of shoplifting never even comes close to approaching the incidence of music downloading. Most shoplifters are dysfunctional individuals or persons in distressed circumstances. Why? Because there are strong social norms against theft of traditional property.

Copynorms
But the norms against unauthorized copying of music have broken down, or maybe they never existed in the first place. Again, why? One source of the breakdown is the manifest legality of similar copying. After the Supreme Court’s decision in the Betamax case, most lawyers and certainly most lay people believe that copying television programs for personal use is legal. The Audio Home Recording Act includes a provision that makes analogy copying of music recordings virtually legal; you cannot be sued for making an analog compilation tape of copyrighted music.

And the average music downloader understands that if you shoplift or steal a CD, you deprive the owner of the use of the CD. But copying an MP3 files does not have the same effect. Economists would describe this difference using the concept of rival versus nonrival consumption. The social norm against theft of tangible property is supported by widespread understanding of the purpose of law’s against theft. But the general public does not seem to have a similar grasp of the underlying rationale for copyright laws.

Can deterrence alone do the trick? Society would be hard put to invest enough resources in shoplifting prosecutions if ordinary, normally law-abiding citizens calculated the expected utilities of shoplifting in light of the likelihood of getting caught. As experience with alcohol and drug prohibition makes abundantly clear, deterrence is neither sufficient for the alteration of behavior nor the creation of social norms–where ordinary citizens do not regard the law itself as a reason for refraining from the prohibited conduct. (Things would be different in a police state.) Oh, and by the way, I think Hamilton is completely out of touch if she thinks that thrills are a significant motivating factor for any significant number of music downloaders.

The RIAA’s Litigation Campaign and Deterrence
The RIAA plans to bring hundreds of lawsuits against those who post large numbers of MP3 files for downloading. Will 500 lawsuits create a realistic threat of prosecution for 50 million users of file sharing programs? Assuming perfect information, the risk of prosecution is about one in one-hundred thousand. A far lower risk than that of being prosecuted for marijuana usage or underage drinking. Moreover, those who share only a few dozen files or download but do not share are likely to know that their chance of being caught is much less than one in one-hundred thousand. Indeed, their risk chance of being named as a civil defendant is functionally zero. Their risk of being named as a criminal defendant is actually zero.

Backlash
The RIAA’s decision to file hundreds of lawsuits against those who share MP3 files is not likely to have a substantial deterrent effect, but it may have other effects. In particular, it may well create further animosity towards the music industry–especially if the accompanying public relations campaign is poorly handled. And such hostility may prevent rather than enhance the emergence of copynorms. Read Hamilton’s interesting piece!