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Saturday, September 20, 2014

Intellectual Property Infringement as Vandalism (Part 3)

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

The problems that have arisen in the discussion over whether intellectual property infringement is theft have a number of causes. Content owners know that the message “intellectual property infringement is [a property offense lesser than theft]” does not pack the same rhetorical punch as their current statements. Opponents of the present rhetoric, however, are right to argue that infringement rarely removes all value, which distinguishes it from theft. Meanwhile, there are other types of offenses against physical property that characterize actions whose effect is to partly reduce the value of goods. The most prominent of these is likely vandalism. Vandalism involves the destruction rather than removal of property. The concept of vandalism does not suffer from the majority of flaws that open up to attack the analogy to theft. Vandalism, by definition, does not require a complete removal of the good or of its value. The owner may still retain the ability to sell or license the good. And, in some cases, both intellectual property infringement and vandalism have the potential to enhance rather than reduce the value of goods.

Naturally, no analogy is perfect. Vandalism often results in physical damage, while infringement does not affect the quality of the original good. And vandalism generally does not lead to monetary free riding, although it may bring non-financial enjoyment to the vandal. What generally matters most to the intellectual property owner, however, is the state of the value of his good. And just like infringement can result in lower value for an intangible good, vandalism does so for a tangible one. One can further quibble that vandalism must result in damage to be actionable. Indeed, there may be cases in which another form of property violation may provide an even better parallel, and that is trespass. There is usually no requirement that trespass result in damage. The culpability of an illicit downloader of copyrighted goods will lie, at most, somewhere between that of a vandal and of a trespasser. I say “at most” due to the recognition that vandals and trespassers may also make property owners feel unsafe, which is usually not the case with intellectual property infringers.

Having the public and courts use the mental model of vandalism or trespass to approach copyright infringement poses some difficulties for the content owner, especially in the context of non-commercial infringement. One big problem that content owners face is the cost of pursuing infringers. Indeed, the “thief” label precisely obscures the important fact that, in many cases, no single perpetrator of non-commercial infringement is responsible for much damage at all. At most, that perpetrator is a vandal or trespasser, and how much of a punishment does an individual like that deserve or how much should he owe a content owner by way of restitution? Indeed, how much damage does a single commercial infringer cause? Even she is more of a vandal than a thief for the reasons delineated above.

The next and last part of this post will examine the statutory framework surrounding property violations and compare it with the laws that punish copyright infringement. This analysis will show that while individual perpetrators are more culpable in theft scenarios and at times even in vandalism ones, copyright infringers frequently risk incurring higher penalties for their offenses than for what would have been the equivalent property violation. 

Posted by Irina Manta on September 20, 2014 at 02:15 AM | Permalink

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