Strong copyright enforcement in a corrupt world

There is an ongoing scholarly debate within U.S. legal circles about just how vigorously copyright violations should be pursued and punished.  In the U.S., this debate often takes the form of whether 6- or 7-figure judgments should be levied against single moms or 20-something grad students who copy music.

In more authoritarian countries, however, the stakes for alleged copyright infringers are often much higher.  Clifford J. Levy over at the New York Times recently posted this interesting piece entitled “Russia Uses Microsoft to Suppress Dissent” highlighting the plight of an environmental group which

fell victim to one of the [Russian] authorities’ newest tactics for quelling dissent: confiscating computers under the pretext of searching for pirated Microsoft software.

Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years. Security officials say the inquiries reflect their concern about software piracy, which is rampant in Russia. Yet they rarely if ever carry out raids against advocacy groups or news organizations that back the government.

Such self-serving enforcement will always be a danger in copyright enforcement.  Copyrights protect non-rivalrous goods:  users can duplicate a copyrighted work without disturbing the author’s own enjoyment of the work.  This is in direct contrast to tangible property, which is rivalrous:  if I steal your laptop, I now benefit from your laptop and you suffer from its lack.  Put another way, my theft of a rivalrous good has not created two laptops the way (illegally) copying a non-rivalrous good (say, Windows 7) creates two fully functional copies.

This is not to say, of course, that copyright owners are not harmed when their works are pirated.  Indeed, owners do lose revenue to the extent that, in a parallel universe without the piracy, they might have been paid for the additional copies of their work (assuming the now non-existent pirate prefers to pay the market price rather than simply to go without).  Many scholars argue that copyright exists precisely to allow authors to benefit fully from every copy made of their works.

It is important to remember, however, that such vigorous protection comes at a privacy cost.  If I steal your laptop, a physical act has occurred that leaves you tangibly and noticeably poorer, and the police have something specific (i.e., a laptop) to recover.  If I copy Windows 7, no physical act of theft need occur (perhaps I obtained the first copy from Microsoft legitimately), and the police have nothing concrete to pursue.

As a result, law enforcement is left with two broad strategies when pursuing copyright infringement:  (1) incentivizing whistleblowers and (2) conducting fishing expeditions.  Within the U.S., (1) is encouraged and (2) is usually legally suspect.  In countries with fewer legal protections and more corruption, however, (2) presents a convenient excuse for harassment and intimidation whenever needed.  Robust copyright enforcement in such a context thus comes at an astronomically high privacy cost.

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