Depoorter, Van Hiel and Vanneste (2011)
|Depoorter, Van Hiel and Vanneste (2011)
|Depoorter, B., Van Hiel, A., Vanneste, S.
|Depoorter, B., Vanneste, S., & Van Hiel, A. (2011). Copyright Backlash. Southern California Law Review, 84.
|Definitive , Open Access
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|About the Data
|404 students (252 female and 152 males, ages 18 to 24) completed one of two surveys:
Participants were students of undergraduate political science courses (unaware the survey would be offered in class that day) and included only students who indicated they had illegally downloaded previously.
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In the past decade the entertainment industry has waged a legally very successful campaign against online copyright infringements. In a series of high profile decisions, content industries persuaded courts to accept expansive interpretations of contributory enforcement, to create novel doctrines of copyright infringement, and to apply broad interpretations of statutory damage provisions. Many private file-sharers, technology companies, university administrators and Internet service providers have felt the reach of this litigation effort. Yet a significant empirical anomaly exists: even as the copyright industry has ramped up the level of deterrence, online copyright infringements continue unabated.
Why has the legal battle against file-sharers been so ineffective? The most straightforward explanation is that infringers are not deterred, either because the probability of getting caught remains remote or because the sanctions are not sufficiently salient. If that is the case, the expansive statutory damage award remedies in recent decisions such as Capitol Records v. Thomas-Rasset and Sony BMG v. Tenebaum, carry renewed promise for the entertainment industry.
In this Article we claim that this deterrence-based approach will prove futile and even counterproductive to the goals of copyright holders. We argue that copyright law faces conditions similar to Prohibition and other historical episodes of enforcement failure. When infringements are widespread, effective deterrence cannot be attained without raising enforcement to levels that undermine the support for the underlying rules. As a result, enforcement has the inadvertent effect of moving behavior in the opposite direction from that intended by the law. In the context of copyright law, enforcement has increased the gap between the social and legal perceptions of copyright law. Because file sharers, as a group, perceive copyright litigation as excessive, this inadvertently strengthens opposition to the legally protected interests of copyright law.
To further our understanding of the interplay between enforcement and public attitudes, we conduct two empirical studies on norms and copyright law. The results confirm that copyright enforcement is a double-edged sword. While stringent sanctions have a modest deterrent effect on file-sharing behavior, they increase anti-copyright sentiments among frequent offenders. This raises a spectacular challenge for copyright enforcement-the more copyright owners push to step up sanctions for copyright infringements; the more the public resents the protected rights. Consequently, stepping up sanctions tends to increase - rather than decrease - the rate and frequency of infringing activities. Our key results suggest therefore, that more stringent copyright enforcement will further erode respect for copyrights and may prove counterproductive to copyright owners.
Main Results of the Study
This study found that severe and heightened enforcement of copyright law amongst students who illegally download music from file-sharing sites resulted in anti-copyright resentment, with a positive correlation between degree of backlash and amount of downloading prior to data collection; this suggests a tipping point for amount of downloads to influence a normative shift. Students receiving severe sanctions reported plans to download more in the future as compared to students receiving moderate sanctions, creating a copyright backlash.
Policy Implications as Stated By Author
Sanctions can deter or encourage file-sharing behaviour, and different types of sanctions should be implemented for different types of infringers so as to avoid counterproductive backlash. In order to influence embedded norms about copyright, music companies must do more to foster desired social behaviours through outreach and marketing campaigns; however, social norms are difficult to manipulate and alternate norm systems are already developing.
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