Intellectual Property Infringement as Vandalism (Part 4)

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This is the fourth and last part of my post on my new co-authored piece Intellectual Property Infringement as Vandalism (the first part is here, the second here, and the third here.

While, as discussed previously, a number of people advocate for intellectual property to receive the same level of protection as property, few would openly say that it should receive more. In the discussions about intellectual property as property, the latter is generally viewed as a ceiling in that category. One would therefore expect at first blush that when it comes to sanctions, intellectual property infringement would at most be punished at the same level as property violations. Our paper shows that intellectual property infringement bears the most resemblance to vandalism and trespass. In the realm of sanctions, however, not only are the statutory criminal and civil sanctions generally higher for intellectual property infringement than those for vandalism, they are also higher than for downright property theft.

One of the ways to make a comparison is to imagine a hypothetical good of a certain value and examine how it would be treated under intellectual property versus property law. As will become apparent, this exercise is not without its problems and perils, but it is informative nonetheless. Let us assume that an individual distributes a song illegally to 1,001 other individuals. The song would normally cost $1 to download legally. Had all 1,001 individuals who thus obtained illegal copies bought the song in a legitimate fashion, its owner would have earned $1,001. That being said, in this type of situation, undoubtedly not all 1,001 people would have actually bought the good, so the harm to the song owner is lower than that. Furthermore, one could argue that this distribution may constitute a proximate cause for future redistributions, which would bring about greater harm. The extent of this redistribution and of the role that the initial distributor played in their causation are difficult to predict, as is the number of people who would or would not have bought a given song. As a matter of approximation, let us therefore proceed with the figure of $1,001 for the harm (the high end) but with no regard for subsequent harm involving redistribution. Indeed, that is the figure that copyright law would use to evaluate the gravity of the offense. Whether the action was taken for profit or not, a person guilty of this violation could go to prison for up to a year and be fined up to $100,000. If that individual distributed the song to 2,501 people (thus causing a potential harm of $2,501), she would face a maximum sentence of five years if it was done for profit or three years if it was not. She could also be fined up to $250,000.

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November 5, 2014 |

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