Comments on “Enforcing against
norms: trial and error in
copyright law” by Ben Depoorter
& Alain Van Hiel
Professor Matthew Sag
Loyola 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
CAS & Trolls reduced prediction that others would take the risk
Most people will continue to take the risks involved with file sharing (1=Agree)
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.
A bit better than RIAA in normative change assessment
These developments are causing me to adjust my norms regarding the illegal exchanges of
music.
This is making me realize that legislators should step in and create more balanced rules in
copyright law
No clear difference in likelihood of downloading
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)?
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–B
A: (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.