On Friday, I traveled back to Chicago to participate in a conference held at Northwestern—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. Matt’s paper is very interesting and provocative.
Matt’s thesis: The recording industry’s end user litigation strategy makes perfect sense. Further, the RIAA “should deliberately target sympathetic defendants along with a spectrum of file sharers.†Conventional wisdom, Matt says, holds that RIAA doesn’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 – 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 – again one’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 RIAA’s end user litigation strategy is optimal from a social welfare perspective. He is focused on what’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. I’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 questions—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 we’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 RIAA’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. Mark’s paper about jambands, which I’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.
Brett, thanks for touting my paper yet again. It will be out later this Spring–I’m finishing up final edits on it right now. I’ll have to get in touch with Matt, as his paper sounds interesting. A few thoughts. First, two on the RIAA as an organization, then a few about the effect of the RIAA’s enforcement strategy on copynorms overall.
(1) If cost benefit analysis is confined to monetary cost -vs- monetary gain, the RIAA suits are a goldmine. Thanks to statutory damages and the fact that most targets appear to fold, the RIAA can extract settlements far in excess of litigation costs.
(2) These suits work well for the RIAA as an organization. If the RIAA proceeded to lecture the music industry about treating its customers better, creating better product, and experimenting with new business models, its leadership would be fired quickly. Who needs a trade association to do what pundits and professors are glad to do for free? The incentives for the RIAA are to do *something* for its members, and the somethings that trade associations do best are litigating and lobbying.
(3) Some enforcement is necessary. If copyright owners want people to take copyright law as normatively serious, copyright owners need to enforce it. If copyright owners want people to believe that they are likely to be caught and punished if they infringe, however, they almost certainly need to devote a huge amount of resources to enforcement to generate this perception. Right now, getting caught infringing is extremely unlikely. Therefore, some enforcement is necessary to send the right message, but a pure deterrence strategy is unlikely to be a cost effective way to change behavior.
(4) The wrong kind of enforcement may be harmful. While some enforcement is necessary, people’s expectations need to be taken into account. Perceptions of unfairness in enforcement undermine support for the law. And, if enforcement diverges too much from the norm, people are more likely to resist complying with the law. As things stand, it does not appear that the RIAA litigation is building support for copyright–either in terms of public opinion or actions.
(5) At the very least, the music industry ought to consider whether the RIAA has a conflict of interest. The RIAA’s harsh rhetoric impresses its most vocal constituents and builds its lobbying case, but is it in the long run interest of the music industry? Right now, we hear the following: “The apocalypse is nigh; nobody is paying for music.” If that’s so, then why should I be the only sucker who does so? “Downloaders are pirate scum.” Yeah, I love you too and will be delighted to pay for your product. Thanks for the free rootkit.
A better, more balanced message might impress the public. “Millions are complying. So should you.” “Those few who don’t comply hurt artists and everybody else.” “We hate to sue people who think they are our fans, but real fans don’t download. Please stop. If you don’t you’ll get caught.”
The latter types of messages do get into the mix, but they are rarely the pull quote. Jack Valenti didn’t get a 40 year career by sounding nice and conciliatory.
First let me say thanks to Brett Frischmann for his many insightful comments on my paper (to be posted on ssrn soon (http://ssrn.com/author=461043)) at the 1st Annual Northwestern Journal of Technology and Intellectual Property Symposium: IP Litigation in the 21st Century.
I thought I would make a few quick points in response to Mark Schultz’s post:
I don’t think that anyone thinks that a pure deterrence strategy is likely to change consumer behavior. A more complete understanding of the social policy and recording industry strategy with respect to file sharing requires understanding 3 things, (i) the value of deterrence, (ii) the interaction between deterrence and social norms, and (iii) the effect of non-deterrence on social norms. (I should probably say at least 3 things).
Mark is right; the social norms implications of the recording industry’s end user litigation strategy need to be considered. Nonetheless, the implications of social norms are possibly being over-hyped by those who are unsympathetic to the RIAA. Mark’s paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=805945) is a very useful contribution in this regard because he goes beyond “backlash, backlash, backlash†and actually makes a positive contribution. Mark suggests that the recording industry can develop pro-copyright social norms by understanding the basic human impulse of reciprocity and that the norms of the jamband community provide evidence of this.
I agree with Mark that the wrong kind of enforcement may be harmful. I am now working on a separate paper which makes the case for a low sanction, high probability regime for unauthorized p2p file sharing. Borrowing some from work on the “war on drugs†I suggest that we need to decriminalize file sharing but at the same time give the recording industry much more powerful tools of enforcement.
I view file sharing the way I view driving 70 in a 60 zone on the highway. It is not morally or ethically wrong, but there is good case for some kind of government regulation. We don’t throw you in jail the first time you get caught speeding, we slap you with a $300 fine and tell you not to do it again. Speeding tickets don’t provoke that much moral outrage, and they seem to be effective in curbing behavior.
This paper is still embryonic and I welcome comments on the basic idea and suggestions for further research.
My proposal is different to Lemley and Reese in that they suggest an administrative dispute resolution model for high volume up-loaders, I am thinking more along the lines of a rebuttable presumption of civil liability for any amount of file sharing. If the fines are set low enough, this proposal starts to merge with some of the liability rule proposals (e.g. Fisher).
A couple of minor points:
(1) Mark says “it does not appear that the RIAA litigation is building support for copyright–either in terms of public opinion or actions.†While it’s true that consumers have not started plastering their walls with “I love the RIAA†posters, the Pew Internet and American Life Surveys do indicate that attitudes to file sharing are changing. I think iTunes etc deserves as much of the credit as litigation, but these are complementary strategies.
(2) Mark and I both refer to the “conventional wisdom†about file sharing in our papers, but we mean two very different things. Maybe we both need to consider whether this label is more of a rhetorical device than it is a useful description.
Are there any numbers out there (or at least guesstimates) showing how much money the RIAA has gained in settlements and how much they have spent on litigation?
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