Crime, Copyright, & the Digital Age

This essay, which will appear as a chapter in a collection entitled What Is a Crime? Criminal Conduct in Contemporary Society, edited by the Law Commission of Canada (forthcoming 2004, UBC Press), describes and evaluates efforts to criminalize digital copyright infringement in the United States in Canada. Part II relates the history of criminal copyright legislation and enforcement in the two nations. That history reveals a longstanding legislative and administrative reluctance to impose criminal punishments on copyright infringers. It also shows, however, that in recent decades legislatures have become more willing, in the face of new technological threats and industry pressure, to expand the scope and severity of criminal copyright offences. This has culminated in two novel responses to the threat of digitization: the criminalization of non-commercial infringement and the prohibition (enforced by criminal as well as civil sanctions) of technologies enabling the circumvention of protections against unauthorized copying. Part III explores the impact of digitization on the economics of copyright enforcement. It describes the weakening of civil enforcement mechanisms wrought by digitization and canvasses the normative debate surrounding the appropriate scope of copyright protection for digital works. I note the extent of copyright protection on the ground depends heavily on the availability and efficacy of remedies and argue that criminal law principles should play a prominent role in determining the extent to which those remedies are criminalized. Part IV attempts to articulate limiting principles for the application of criminal penalties to copyright infringement. Section A canvasses moral theories of criminalization, including approaches grounded on analogy, consensus, and harm. While these theories generate useful insights, especially on the interaction between law and shared social norms, none provides a compelling argument for or against the criminalization of copyright infringement. Section B turns to economic analysis. The standard economic model of crime predicts that optimal deterrence can be achieved by adjusting enforcement and punishment levels. Econometric and socio-legal research reveals, however, that under certain conditions deterrence may not be achievable. I argue that this is likely to be the case for certain types of copyright crime, including non-commercial online file sharing and technological circumvention. This failure of deterrence results from strategic interactions often associated with digital copyright infringement, including low visibility, widespread disobedience, risk aversion, substitution effects, and most importantly, disjunction between criminal punishments and social norms. Under these conditions, criminalization is likely to be ineffective and harmful. Part V concludes, recommending restraint regarding the expansion of criminal copyright law.