On Friday, I traveled back to Chicago to participate in a conference held at Northwesternâ€”the 1st Annual Northwestern Journal of Technology and Intellectual Property Symposium: IP Litigation in the 21st Century. My job was to comment on “A Rational Choice Model of Copyright Enforcement: Why the RIAA should continue to target 12-year-olds and grandmothers,” a paper by Matthew Sag, who is currently visiting at Northwestern and will join DePaul next fall. Mattâ€™s paper is very interesting and provocative.
Mattâ€™s thesis: The recording industryâ€™s end user litigation strategy makes perfect sense. Further, the RIAA â€œshould deliberately target sympathetic defendants along with a spectrum of file sharers.â€ Conventional wisdom, Matt says, holds that RIAA doesnâ€™t get it; they are acting irrationally and are going to suffer as a result. Perhaps the RIAA is panicking because of the rapidly eroding revenues, or perhaps the RIAA is acting in spite, seeking vengeance, or is just plain out of touch with reality. But wait. Despite the seemingly irrational behavior of the RIAA in suing its own customers, maybe there is a method to the madness â€“ a rational plan beneath the surface. Perhaps the RIAA is acting rationally in suing end users because the benefits of doing so actually exceed the costs. To evaluate whether this is true, we need to know what are the benefits and costs of suing end users â€“ again oneâ€™s customers or potential customers. What are the real risks involved? Is it worth taking those risks? In the paper, Matt develops a model to identify and categorize the costs and benefits, and he proceeds to evaluate the magnitude of the various costs and benefits and to consider how by adjusting certain variables, the RIAA can seek to maximize profits. To be clear, Matt does not pretend to be evaluating whether the RIAAâ€™s end user litigation strategy is optimal from a social welfare perspective. He is focused on whatâ€™s best for the RIAA.
I had a bunch of things to say about the paper, and I said them at the symposium and privately to Matt. Iâ€™ll wait until the draft is publicly available before commenting on it here. So keep an eye out for the paper.
But I will note that Matt has a number of interesting things to say about, among other things, social norms in IP and the potential impacts of the RIAA litigation strategy on those norms.
He asks two questions: (1) why do so many consumers feel that unauthorized file sharing is acceptable when it is clearly illegal? And (2) will direct enforcement against end-users (including the sympathetic marginal downloaders) increase voluntary compliance or result in a normative backlash?
Our discussion of these two questions raised a flurry of other questionsâ€”e.g., is a norm of sharing more prevalent with creative expression than other things (perhaps because by its nature expression is capable of being shared and simultaneously possessed by many and also because historically weâ€™ve shared expression informally)? do people view copyright like the speed limit where a certain degree of noncompliance is not only expected but is welcomed/tolerated? if so, why? moreover, if so, has the Internet affected this understanding in any meaningful way? (I suggested a rough analogy between the Internet and a new vehicle capable of traveling safely at 120mph; public perception of copyright and the speed limit might view the law as overly restrictive and consequently accept greater degrees of noncompliance; of course, the perception might be faulty, it nonetheless helps one to see how increased enforcement of the law may lead to even greater backlash unless the perception itself is dealt with first.) can the RIAAâ€™s public image get any worse? is there a significant downside in terms of normative backlash? Etc.
Our discussion of norms brought to mind a paper written by Mark Schultz of Southern Illinois that will be (or recently has been) published in the Berkeley Technology Law Journal. Markâ€™s paper about jambands, which Iâ€™ve mentioned before, made some interesting suggestions about what the RIAA could learn from jambands and the manner in which jambands managed their intellectual property and their fanbase. Mark demonstrated that jambands successfully cultivated social norms and complex reciprocal relationships with fans that together sustained revenue to support the band and rampant sharing of recorded performances. He also discussed how the jambands took advantage of Internet technology to develop norms, trust, and goodwill. The same strategy might not be appropriate for the recording industry on the whole, but it is worth considering when evaluating the optimal strategy for the RIAA.