Comments on “Enforcing against norms: trial and error in

copyright law” by Ben Depoorter & Alain Van Hiel

Professor Matthew SagLoyola University of Chicago School of Law

November 6 2015

Background• Various strategies addressing online infringement– Targeting software and service providers, end-user

litigation, BitTorrent trolling, Copyright Alert System (graduated response).

• Effectiveness and extent of Backlash unclear because too many confounding events.

This paper• Authors build on previous studies and attempt to

determine the prospects of CAS• Experiment with 371 student-subjects (263 in 2011 and

108 in 2014)

The population, pre-treatment• They buy and they “steal”:– Some history of illegal filesharing is pretty much ubiquitous

in this population • Only 11% of respondents indicated that they had never

downloaded unlicensed copies of music or movies.

– However, almost 93% of respondents also consume music and movies through legal options such as Spotify, Netflix etc.

• Predicted future conduct – 22% of the respondents indicated a strong intention to

continue downloading – But 32% predicted no future downloading. – Average prediction on a 1-9 scale was just over 4 in both

years

• Perceptions of the morality of illegal downloading– have if anything come become more tolerant time,

although the differences measured on a 1-9 point scale do not appear to be substantial or significant.

• Perceptions of risk– Interestingly, there is no obvious difference between

infringers and non-infringers in terms of their estimation of how likely illegal downloaders are to be court.

The Treatment• Interventions/Exposure to Scenarios

Results• Attitudes more or less unchanged• CAS slight advantage on some deterrence measures

• Belief that most people will continue to take risks involved with filesharing

• CAS slight advantage on Backlash• better on predictions of future infringement after the

‘anonymity’ condition

Most people will continue to take the risks involved with file sharing (1=Agree)

CAS & Trolls reduced prediction that others would take the risk

These new developments are gradually making me realize that illegally downloading music is not ethical.

I am of the opinion that the music industry is conducting an unjust, disproportionate policy.

The policies of the music industry conflict with my sense of justice.

The policies of the music industry are an attack on my freedom to listen to music.

These developments are causing me to adjust my norms regarding the illegal exchanges of music.

A bit better than RIAA in normative change assessment

This is making me realize that legislators should step in and create more balanced rules in copyright law

In 2011-2012, how likely is it that you will download music from file-sharing platforms or technologies (not including Itunes and other licensed download stores)?

No clear difference in likelihood of downloading

Because of the enforcement policy of the music industry prior to the introduction of the new protective software influences (see news paper clipping), I will download more. (1= not at all)

No difference in backlash between RIAA and CAS

Comments/Possible Implications• Give content providers greater tools to attack infringement at

the source – Recalibrate the Sony safeharbor to a standard that is more

exacting than significant noninfringing use – Revisit the DMCA safe harbors, and various provisions of SOPA

etc.

• Greater state involvement with enforcement and deterrence– Perhaps we need to replace a system of largely private

enforcement with something that more clearly bears the imprimatur of the state.

• Give up on deterrence and adapt business models and product offerings to increase the utility of paying for content.

What does this tell us about law and norms?

• Economists: deterrence is effective; more deterrence is even more effective

• Social psychologists: “it ain’t necessarily so”; but these ex post explanations lack predictive power

• Challenge: If indeed copyright norms are sticky, we probably need to think harder about exactly why they are sticky.

The Big Picture• The study is quite informative within the “infringement =

lost revenue” paradigm, but – the “infringement = lost revenue” paradigm is

obviously flawed– virtually all students both buy and steal!

• The study would be even more informative if it asked about future legal consumption plans rather than concentrating solely on future illegal consumption plans.

Methods• If self reporting is unreliable, self reporting of predicted future

behavior is probably even worse. – In the context of illegal behavior it is very difficult to design a

more realistic scenario.

• The scenarios: I’m not sure they really reflect the subjects’ real-world experience. – This is an inherent limitation of this kind of survey.– Some of the questions are hard for people to compute

• “In your estimation, how many file-sharers that continue to download on a daily basis will face repercussions?”

• “In your estimation, what are the chances of getting detected and prosecuted for file-sharing?”

• “In your estimation, what percentage of the students who violate copyright law by downloading music on file-sharing networks will eventually be caught?”

• The scenarios are not as distinct as you might think– Some subjects already have knowledge of some or all

other treatments– Randomization addresses this problem but does not

cure the validity question

• Results should be reported as difference in difference to account for variation in initial groups. – Not sure the survey is designed for that, but for

example …

Filesharing_Reduction = “likely future dl music” – “likely download after”

Moral_shift = A–BA: (post treatment) These new developments are gradually making me realize that illegally downloading music is not ethical. B: (pre-treatment) I feel that it is morally wrong to use file-sharing technology to download music without paying

Conclusions• The paper investigates the likely effectiveness of CAS and

concludes that such a system is unlikely to reverse prevailing norms tolerant of online infringement.

• Moreover the authors suggest that CAS may indeed trigger a backlash because it is perceived as overbearing enforcement and a threat to individual privacy.

• This paper makes an important contribution to our understanding of the likely effectiveness and broader consequences of various strategies to reduce digital copyright infringement.