Towards a Copyriot Act — and Away from It, Again

What lies ahead for copyright? As Rasmus Fleischer observed, infringement has grown cheap, easy, and widespread. He concludes that copyright will wither into irrelevance. That might happen, I grant. Allow me, though, to describe another future for copyright, one in which lawmakers impose crushing penalties to discourage rampant infringement.

Put yourself in the shoes of a Hollywood executive. For decades, copyright served your industry well. You hawked expressive works, consumers calmly lined up to pay, and everybody seemed pretty happy about the results. Your long years in the business have seen American culture light up the planet. “What vases were to ancient Athens,” you say, “music, films, and TV are to Hollywood.”

Now, though, you see your cultural empire crumbling. Inspired by anti-copyright rhetoric and taking advantage of lax enforcement, mobs have swept through the marketplace. They boldly break the locks protecting copyrighted works, greedily grab the goods, and disappear into the crowd. “We cannot make money under these conditions!” you exclaim. “Lawmakers need to act or we will abandon the market.”

What would you have lawmakers do? “The same thing they do whenever mobs start breaking into stores,” you reply. “The police need to fire a few shots over the infringers’ heads. And if the looting continues, they should shoot some of the looters. That may sound severe, but we face a breakdown of civil order. After all, wouldn’t police — or perhaps the National Guard — do the same if mobs threatened to take over Wall Street, Rodeo Drive, or Constitution Avenue? Hollywood deserves the same protection. The time has come to get tough on infringement. The Copyright Act’s mild remedies evidently do not suffice. We need a Copyriot Act!”

Now step outside of that Hollywood executive’s rather irritated skin and consider his complaint objectively. However extreme his rhetoric, he has a valid point. Suppose that copyright protects property and promotes the public good — a plausible claim. Suppose further that, as Fleischer observed, the odds of getting caught violating copyright have plummeted. Holding all else equal, then, to keep copyright policy in balance, lawmakers should increase the disincentives to infringement.

How high, on that view, should the costs of infringement rise? Our disgruntled executive would have National Guard troops shoot copyright infringers. That certainly sounds extreme but, as he observed, officials have applied similarly harsh measures to curb civil disorder. Lawmakers could increase the disincentives for copyright infringement without resorting to summary execution, however; they could simply impose the death penalty, for instance, with all of its many procedural protections. Even mandatory life in prison would go farther than present law in discouraging copyright infringement. Exactly how much copyright infringers should suffer of course remains subject to empirical study. Regardless, however, the executive’s argument stands: If technology allows almost all copyright infringers to escape punishment, the law should inflict extraordinarily harsh punishments on those few infringers that it does manage to catch.

Our hypothetical executive can also cite precedent for his view that extraordinary civil unrest calls for extraordinary law enforcement measures. By most accounts — and certainly by Fleischer’s — the Copyright Act evidently no longer suffices to discourage infringement. We might thus say, to quote another federal law,[1] that a technological condition has arisen that “so hinders the execution of the laws” as to deprive copyright holders of “a right, privilege, immunity, or protection named in the Constitution and secured by law” — namely, their copyright rights. That same law provides that if state or local authorities “are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection,” the president “may employ the armed forces, including the National Guard in Federal service” to restore public order.[2] On that view, a Copyriot Act does not seem so far-fetched.

In addition to keeping copyright policy in balance, threatening infringement with severe sanctions offers efficiency gains. Cognitive psychologists tell us that humans routinely overestimate the likelihood of so-called “dread” risks — those that capture our imaginations with the prospect of spectacular crashes and terrible pain. Most travelers wrongly regard airplanes as more dangerous than autos, for instance. Lawmakers might thus economize on the costs of enforcing copyrights by inflicting especially dreadful penalties for infringement. It should take only a few high-profile prosecutions — giving some file sharers the Guantanamo treatment, for instance — to discourage a great many other would-be infringers. Although that may seem cruel, “mercy to the guilty is cruelty to the innocent,” as Adam Smith observed.[3]

So goes the case for radically increasing the penalties for copyright infringement. Despite the impassioned plea of our imaginary Hollywood executive, however, and the ruthless logic we might marshal in his support, I suspect that most who read this essay will reject his call for a Copyriot Act. I do, too. What explains our hesitation?

Perhaps simple self-interest drives us. Not being Hollywood executives, after all, few of us stand to lose our jobs and our fortunes to copyright infringement. We might instead relish the prospect of winning unrestricted access to formerly protected works. We might, in other words, want to join the mob of looters decried by our imaginary Hollywood executive.

I doubt that so crass a motive can fully explain our hesitation to view widespread copyright infringement as little better than looting, however. Despite their rhetoric equating infringers to thieves, and copyrights to cars, handbags, or televisions,[4] even copyright industry representatives have not (yet) called for anything so merciless as a Copyriot Act. Perhaps that will come, of course. As suggested by passage of the Sony Bono Copyright Extension Act and Title I of the Digital Millennium Copyright Act, powerful lobbies have consistently sought and won expanded copyright protection.

More likely, though, even Hollywood executives regard their Bentley sedans, Gucci purses, and Sony HDTVs as more deserving of rigorous legal protections than they do their movies, television programs, and songs. On that count, moral intuitions reflect the same view taught by economic reasoning, political philosophy, and sound public policy: Copyright represents a statutory privilege designed to maximize social utility — not a private property we can claim as a matter of natural or common law right.

If lawmakers should not react to the advent of cheap, easy, and widespread infringement by treating it like an outbreak of looting, how should they react? On that question, one might write a book (as, indeed, I did).[5] Suffice it to say, here, that lawmakers should not seriously consider passing anything like the Copyriot Act called for by our hypothetical Hollywood executive. If saving copyrights require any measure so extreme as that, they are not worth saving.

Notes

[1] 15 U.S.C. § 333(a)(2)(A).

[2] Id. § (a)(1)(A).

[3] Adam Smith, The Theory of Moral Sentiments part II, § 2, ch. III, para. 21 (1790).

[4] See Patricia Louise Loughlan, “You Wouldn’t Steal a Car”: Intellectual Property and the Language of Theft, 29 European Intellectual Property Review 401 (2007).

[5] See Intellectual Privilege: Copyright, Common Law, and the Common Good (draft v. 2008).