A few journalists have called recently to ask about Aaron Swartz. Some have asked for my personal thoughts on whether I thought MIT was right to cooperate with the Secret Service in investigating and arresting Aaron. I didn’t know the facts well enough to offer an opinion but I began wondering why MIT, with its $10 billion in the bank, and JSTOR, with its thousands of paying customers, need assistance from the government in pursuing alleged copyright violators?

It is easy to see why murder cannot be efficiently addressed by a civil lawsuit. Money damages won’t replace a lost human life. The survivors of a murder victim may not have enough money to file a lawsuit. A copyright violation, however, never involves someone’s death or physical injury. A publisher claims to have lost some money because of an individual’s or a company’s action. Copyright holders can be some of the wealthiest individuals (J.K. Rowling!) and enterprises (Disney) on the planet. They have drawers full of lawyers and it is not obvious why they need taxpayer-funded government lawyers to fight their battles for them.

Yet ever since 1998, when Bill Clinton signed the Digital Millennium Copyright Act (see this analysis for some things that are illegal under this law alone), taxpayer-funded attorneys and investigators have been tasked with ferreting out and stopping an ever-broader range of conduct. If you buy a DVD, copy it to your laptop so that you can watch it on a plane, and never show it to anyone else… you are a felon.

Copyright owners, such as Disney, grew to fabulous riches during an era [pre-1998] when they had to pursue copyright violations mostly as civil matters. Why not scale back on some of these criminal laws and let copyright holders pay their own costs of enforcement via civil lawsuits?

One argument against this proposal of re-privatizing copyright enforcement is that small publishers don’t have the drawers full of lawyers that MIT and Disney have. But in fact the federal government’s massive armamentarium is not available to small publishers. If I call up the U.S. Attorney’s office here in Boston and say “A publisher in Framingham has stolen my 2003 posting about why we don’t need friends [I intended it as humor, but 68 commenters took it seriously!]”, I seriously doubt that they would send the Secret Service over to the evildoer’s house.

Copyright infringement is taken seriously only in those cases where the material infringed was valuable. If the copyrighted material was valuable, by definition the owner was wealthy. If an owner of property is wealthy, by definition he she or it has enough wealth to protect those property rights via a civil lawsuit. Does it make sense to tax a Walmart cashier in Alabama to pay a federal prosecutor and Secret Service team to do a job that was formerly done and paid for by private sector workers?