2013] EFFICIENT COPYRIGHT INFRINGEMENT 1793
INTRODUCTION: COPYRIGHT INFRINGEMENT AND ITS DISCONTENTS
Transgression is supposed to cause bad outcomes. Countless morality
tales remind us that those who ignore widely established social norms tend
to meet unhappy fates.1 And this is especially true of transgressing legal
boundaries. After all, while the State regulates conduct for many reasons,
primary among them is to deter and sanction socially costly behavior. And
usually, breaking the law does make the world a worse place. Entering
someone else’s real property without permission affronts their sense of
ownership and security, and it can bring civil and criminal sanctions down
on the trespasser. Murder ends lives, brings tragedy to survivors, and lands
perpetrators on death row. The same holds true of private law, where
breaching contracts betrays expectations, undermines the stability of
commercial arrangements, and leads to litigation and liability.
But law’s broadly drawn categories cannot completely account for the
myriad variations of human behavior that it must seek to govern on a daily
basis. Hence, transgressing law’s boundaries can, despite moral instincts to
the contrary, cause net positive outcomes. Trespassing on land in order to
avert a catastrophe or to engage in political protest will likely produce social
benefits well in excess of any harm to the landowner. Killing a remorseless
psychopath who is going to slaughter innocent civilians may do more good
than harm. And promisors may find it more cost-effective to breach a
contract and pay damages than to fully perform. These counterexamples
may be anomalous, but they still illustrate that, at least on rare occasions,
engaging in otherwise illicit conduct may actually make the world a better
Copyright law follows along these lines. According to the official story,
the interests of copyright owners and society exist in a cosmic alignment.
Authors enjoy incentives to create, thanks to exclusive rights in their works
of authorship, and the public gets to enjoy the fruits of the resulting creative
labors. Infringement, the official story goes, disrupts this symbiosis.
Infringement harms owners because it robs them of their ability to extract
value from their works of authorship. Infringement also harms society
because it depresses incentives to own and acquire works, leading to less
creative production and an impoverished cultural environment for us all.
This leads to the notion that strict enforcement of infringement solves both
of these problems. Heavy copyright damages make sure copyright owners
get their due, and they also make sure society enjoys the continued progress
of science that is the constitutional telos of the copyright system. In
copyright, as James Madison observed, “[t]he public good fully coincides . . .
with the claims of individuals.”2
1. The Boy Who Cried Wolf furnishes a well-known example. If you lie enough times, it
reminds us, you may end up as dinner for feral canines.
2. THE FEDERALIST NO. 43, at 214 (James Madison) (Lawrence Goldman ed., 2008).