Copyright infringement and the separated powers of moral entrepreneurship.

• Author: Fishman, Joseph P.

This Article examines the copyright industries' "moral entrepreneurs," sociologist Howard Becker's term for enterprising crusaders who seek to change existing social norms regarding particular conduct. Becker's conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists' Rights and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property deviance. At the same time, however, the Copyright Act's civil enforcement scheme elides this separation of powers by allowing the rule creators to serve as their own enforcers. Between its criminal and civil remedial schemes, the Copyright Act allows two different paradigms of moral entrepreneurship to operate in parallel: one assigns enforcement to the state while the other entrusts it to the original rule creators. As a result, both rule creators and prosecutors can use infringement litigation to try to map copyright's moral boundaries.

A side-by-side comparison of these two enforcement paradigms shows that the Department of Justice has proven more effective at instilling a norm against copyright infringement than the rightsholders whose interests it represents. By selectively focusing on unsympathetic defendants, prosecutors are defining deviance while avoiding the backlash that has greeted civil plaintiffs. This story offers a lesson, corroborated by other historical examples, concerning what I call the separated powers of moral entrepreneurship. Because professional enforcers tend to lack the moral fervor of the rule creators, they may decline to enforce the rule in situations where the rule creator, if given the opportunity, would forge ahead. This quality makes professional enforcers better equipped to avoid backlash when particular enforcement activities are out of step with widely held social norms. A rule creator who enforces her own rule risks cannibalizing the favorable norms upon which she had intended to build. As a result, where social norms are in flux, the agency cost of delegating enforcement to others is actually a benefit.

INTRODUCTION

Industries dependent on copyright protection have always been in the business of creating new works. Recently, they have also been in the business of creating norms. In their attempts to change permissive attitudes toward copyright infringement, trade groups such as the Recording Industry Association of America ("RIAA") and the Motion Picture Association of America ("MPAA") have become examples of what sociologist Howard Becker calls a "moral entrepreneur," an enterprising crusader who seeks to change existing social norms regarding particular conduct. (1) Criminologists (2) and copyright scholars (3) alike have begun to note that rightsholders are seeking to build consensus on how intellectual property fits into popular notions of right and wrong, waging what has been described as "a moral and ideological battle for the hearts and minds of an increasingly global public." (4) Rightsholders want to disseminate a moral rule against infringement. That makes them, in Becker's terms, rule creators. (5)

Rule creators need not be, and often are not, legislators. A "rule" in this sense is a social norm, rather than law. At the same time, the law remains the classic Beckerian tool of moral entrepreneurship. Rule creators spread norms by convincing lawmakers to adopt legal commands that express those norms. (6)

According to Becker, these rule creators are not the only participants in moral entrepreneurship. Those who succeed in translating norms into formal prohibitions typically require a set of enforcers to administer those prohibitions, an executive branch of moral enterprise. (7) Thus, for example, early Prohibitionists depended on local police forces following the passage of the Eighteenth Amendment, and anti-drug crusaders relied on the Federal Bureau of Narcotics ("FBN") after the agency's inception in the 1930s. (8)

In a limited sense, U.S. copyright law hews to this scheme. Federal prosecutors have enforced copyright law since 1897, when Congress first criminalized willful infringement for profit. (9) The scope of copyright's substantive criminal law has since steadily expanded, particularly over the last two decades. (10) Legislation such as the No Electronic Theft Act of 1997 ("NET Act") (11) and the Artists' Rights and Theft Prevention Act of 2005 ("ART Act") (12) has tasked the federal government with an increasing role in defining intellectual-property deviance. Through criminal prosecution under [section] 506 of the Copyright Act, prosecutors in the Department of Justice ("DOJ") exercise discretion as the rightsholders' agents in moral entrepreneurship.

At the same time, however, the civil enforcement scheme under [section] 501 of the Copyright Act elides this separation of powers. (13) Private causes of action against infringers allow the rule creators to serve as their own enforcers. (14) Whether anti-piracy advocates are lobbying Congress for new civil penalties (15) or pressing for more widespread adherence to existing law, they are empowered to police that law themselves, as the RIAA and MPAA have done through thousands of lawsuits against individual file-sharers. The creator need not depend on the enforcer because creator and enforcer are one and the same.

Between its criminal and civil remedial schemes, the Copyright Act allows two different paradigms of moral entrepreneurship to operate in parallel: one entrusts legal enforceability to the original crusaders while the other assigns it to the state. The result is that both the original rule creators and their conscripts in the DOJ can use infringement litigation to try to map out copyright's moral boundaries.

In this Article, I examine which of these distributions of power has proven more effective at instilling a norm against copyright infringement. It has by now become a relatively uncontroversial proposition that private lawsuits against individual file-sharers have been a self-defeating exercise for plaintiffs. (16) Perhaps unsurprisingly, many feared that criminalizing a greater variety of infringements would only magnify the missteps of private civil litigation. (17) Industry insiders' confidence that infringers would face criminal prosecution was matched by onlookers' confidence that backlash would follow. (18) Yet in the years since, prosecutors' judicious deployment of state resources is proving both of those early forecasts wrong. Contrary to these predictions, the DOJ has been a more productive enforcer than the rightsholders whose interests it represents. Despite an apparent mandate from Congress and the moral entrepreneurs in the entertainment industries, federal prosecutors are not targeting individual downloaders, even ones with prolific amounts of infringing content on their hard drives. Instead, they have pursued commercial pirates and "warez" traders, large-scale syndicates that operate clandestinely and specialize in the distribution of pre-release material. By selectively focusing on unsympathetic defendants engaged in activities foreign to the casual peer-to-peer downloaded prosecutors are--consciously or not--defining deviance while avoiding the backlash that has greeted civil plaintiffs. They have avoided the mistake of spreading opprobrium too thin. (19)

This story offers a lesson concerning what I call the separated powers of moral entrepreneurship. In making the descriptive point that moral entrepreneurs often depend on a professional class of enforcers, Becker never reflects on what qualities predict effective enforcement. (20) Nor, for that matter, have the successive generations of sociologists who have drawn on his work (21) or legal scholars interested in law's expressive function. (22) Copyright's different remedial schemes provide a case study whose results may help fill that gap. Those results suggest that Becker's descriptive division between rule creators and rule enforcers may turn out to be prescriptively desirable. Inhibiting the original moral crusaders from pursuing every case that offends them may prevent their message from becoming too radical for society to bear. It allows a moral rule to filter through the views of others who, while committed to upholding it, possess a more tempered view of the moral content underlying it. This separation of powers provides a check on the sometimes-unrealistic desires of rule creators--and, in doing so, may prevent those creators from running in reverse.

Separating legislative and executive functions is thus a positive structural design not only for governing through law, but also for governing through norms. A division between legislature and executive has traditionally been justified on the theory that otherwise onerous laws can be neutralized at the enforcement stage. By exercising its institutional discretion over enforcement decisions, an independent executive ensures that the law is not dominated by the legislature's sometimes ill-advised agendas. Moral entrepreneurship can work much the same way. Rule creators' crusades, even if history eventually judges them as laudable, may race too far ahead of contemporary norms and result in self-defeat. Ceding the executive role to another counteracts this tendency.

This Article proceeds in four parts. Part I briefly summarizes the literature on the role of social norms in shaping individuals' decisions to comply with or violate the law. Part II outlines how current efforts to curb online copyright infringement represent a form of Beckerian moral entrepreneurship. Part III discusses two potential distributions of power over rule enforcement and an example of...