Why criminalizing IP infringement does not work

Criminal law demands high standards of evidence and due process. IP infringement cases repeatedly fall short of those standards. Using criminal law to protect private monopolistic interests is counter effective.


Japan has recently issued a new draconian law  criminalizing “illegal” downloads.

A single download can get you 2 years in jail, or fines up to Y2m (more than US$25,000).

This is part of a worrying trend, where IP infringement is more and more heavily penalized, under criminal law.

But, at the same time, we see how most criminal cases against file-sharers either go nowhere, or collapse fast.

The most famous example, Kim Dotcom, the founder of Megaupload, received apologies from the New Zealand prime minister. While one of the founders of the Pirate Bay is now under arrest, (apparently, without being charged) the website itself continues to work, and allow its users to share content.

Imagine Barack Obama or Hillary Clinton apologizing to the poor woman who was recently fined an immoral US$ 220,000 for downloading 24 songs.

While more than 90% of downloads are “illegal”, and enforcement does not really make any difference, we see, time and again, politicians stating that the solution to IP “theft” is more enforcement.

But why is this policy failing so badly? Why is it that “pirated” content continues to flow across the Internet, and any attempt to stop it is either useless, or so obviously unfair, and therefore bereft of popular support?

1. There is no real evidence.

Criminal law is different from civil law. Civil law is about private interests clashing, and typically asks that a case is judged on the balance of evidence. But criminal law demands much higher standards.

US courtroom TV series have made the expressions “guilty until proven innocent” and “beyond reasonable doubt” almost household expressions.

Criminal law has a very profound impact on people – it can take away your property or your liberty. Therefore, the legal system has put in place severe and serious hurdles before anyone can be declared guilty of a crime.

And we observe how IP infringement cases consistently seem to fail to meet those standards.

The FBI wants to prosecute Kim Dotcom without releasing the actual files on Megaupload. That’s like charging someone with a crime, but the prosecution does not say where it took place, what actually happened, or who did it (and will make sure no witnesses are ever allowed in the court room). That’s just simply not good enough for criminal standards.

In the same vein, we consistently see how content right holders (aka the old music and film industry) think they can prosecute, without even having the burden of proof that they actually are who they claim they are (aka have the IP rights they claim they have). This effectively puts the onus on the defendant: proof you’re innocent, because we state you’re guilty.

And we all know instinctively that that is not right.

Sometimes people get charged because a download or upload is connected to an Internet Protocol address – their computer, or, a shared access to the Internet. But that is not evidence that the owner actually used it for that purpose, as was clearly established in a case where employees of Universal, Sony or Fox  were found to be accessing the BitTorrent (for you know what reasons), or a man in France was convicted, although he could establish he was not the person who used the computer to download.

If it wasn’t so serious, you would actually think these prosecutors are trying to whip up support for the pirate party.

2. There is no real victim

The higher thresholds of criminal law were set up in order to protect values such as physical integrity and property, when threatened by classic crime such as assault or theft.

But IP infringement is not “classic” crime.

Consider how, very often, there’s no real victim. Unlike the situation when you steal my car, and I can no longer drive it, an “illegal” copy does not actually diminish the value of what the original owner can use.

Intellectual Property Rights (IPRs) such as patents and copyrights are not really property; they don’t have the characteristics of classic property. There is no natural scarcity, there is no positive right to use in an IPR, and there is no “loss” in case of concurrent use.

Instead, IPRs are, from an economic perspective, monopolistic exclusive rights, mainly on distribution.

And, frankly, taking people’s house away in order to protect a distribution monopolist, doesn’t have that special ring of “justice” to it.

 3. There is no “wrong”

In the end, criminal law is about morality. Society decides to enforce those values it holds dear.

Criminal law aims to prevent and punish acts that we all consider sufficiently wrong, that we are willing to strip the perpetrator, to a certain extent, of their civil or human rights, by imposing a fine or taking away their liberty.

But, protecting the private interests of distribution monopolists falls very much short of values that society puts at the level where they merit criminal protection.

Busting a monopoly is not “wrong”.

Calling IPRs “property”, and calling infringement “theft” does not change the underlying facts that IPRs simply do not have sufficient moral value to be protected by criminal law.

And interestingly, it seems like some public prosecutors and a good part of the public start to agree on that.

Of course, the right holders will contest – they will claim their monopolies merit the heavy handed protection of criminal law.

But what does that say about the balance of power of private monopolists on the one hand, and the republic and its monopoly of enforcing criminal law, which is supposed to be governed “by the people, for the people”, on the other hand?

If we give criminal prosecution rights to one category of monopolists, what will stop others from claiming the same? How do we justify using the state’s monopoly to impose criminal law to grant random monopolistic rights to one economic actor, at the detriment of its competitors, and, most probably competition and innovation as a whole?

4. Conclusion

It seems to me that the more IPR holders try to enforce their monopoly by using criminal law, the more they are weakening their moral, and therefore, political case.

Criminal law is just too heavy an artillery to point at “pirates” in the middle of the battlefield of a society that starting to discover the benefits of file-sharing, and user generated content.

I would not be surprised if the attempt to try to apply criminal law to their distribution monopoly, may well have been a crucial political mistake of content distributors.

After all, why does society need a monopoly on the distribution of content? It’s not like it’s actually promoting the arts or useful sciences, is it?


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