Depoorter and Vanneste (2006)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Depoorter and Vanneste (2005)
Title: Norms and Enforcement: The Case against Copyright Litigation
Author(s): Depoorter, B., Vanneste, S.
Year: 2005
Citation: Depoorter, B. and Vanneste, S., 2006. Norms and enforcement: The case against copyright litigation. Oregon Law Review, 84(4), p.1127.
Link(s): Definitive , Open Access
Key Related Studies:
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About the Data
Data Description: This study uses copyright enforcement as a case study to analyse norms associated with file sharing.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • 2005
Funder(s):

Abstract

In the past few years, we have witnessed a historical shift in the enforcement of copyright law. While copyright enforcement against private copying traditionally centered on commercial intermediaries and piracy, content owners now also pursue infringement actions against consumers and private copiers directly. While consumers of pirated content have traditionally been captured indirectly through taxes or blanket licenses, they are now subjected to a mass litigation campaign. Despite the wide media attention and spectacular headlines, litigation has produced only limited results in the present era of digital downloading and peer-to-peer (or "P2P") file swapping. Lawsuits against private copiers have not halted file-sharing activities. An ever-increasing number of unlicensed downloads are taking place in private homes all over the world. According to recent data, over twelve million people' are simultaneously sharing 1.08 billion music, movie, and software files on the Internet at any given moment. Why are individuals unresponsive to the increased costs of downloading unlicensed music? One possible reason is that individuals simply believe that the chances of being caught are too remote because there are so many people downloading at any given moment in time. Downloading fell temporarily during the initial wave of lawsuits but increased again during subsequent rounds of lawsuits as file swappers updated their estimation of the chances of getting caught. Notwithstanding the limited deterrent effect of lawsuits on file sharing, record industry representatives, who often refer to lawsuits in terms of "educating" the public on copyright law, have announced that they will continue to pursue litigation against individual file swappers. In this Article, we suggest that if litigation indeed serves purposes other than deterrence, legal sanctions are unlikely to alter the social meaning and legitimacy of peer-to-peer networks and file sharing. Because of a convinced belief among copyright users that file sharing should be legal, copyright enforcement is challenged by a social norm complication. Drawing on socio-psychological literature and new data from an empirical study, we posit that copyright litigation faces an impossibility theorem: lawsuits against file sharers cannot simultaneously achieve effective deterrence and promote pro-copyright norms.

Main Results of the Study

The evidence from the study raises the hypothesis that deterrence and norms work at cross-purposes. Experienced users of peer-to-peer technology have internalized an anticopyright norm that cannot be unraveled through enforcement. Anticopyright norms of file swapppers 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 against peer-to-peer software reinforces the belief or expectation that others are downloading.

Policy Implications as Stated By Author

The authors examine the options for 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 anticopyright norms. The authors argue that social norm backlash is particularly relevant for copyright law because circumvention technology and the so-called technological "arms race" between content holders and pirates inevitably create lapses in copyright enforcement. During these intervals of reduced enforcement, conduct is determined by norms.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 1
Level of aggregation: case study
Period of material under study: 2005