Digital Rights Management

In the traditional economics of deterrence, raising the sanction is a simple matter of increasing the legislated or judicially imposed penalty for a particular offense. With digital copyright infringement, things are a bit different. Copyright law already includes substantial supracompensatory sanctions in both civil and criminal law. Any copyright infringer—even one who acts innocently—can be held liable for statutory damages in lieu of actual damages at the plaintiff's sole election. Those statutory damages normally range from $750 to $30,000 per work copied at the factfinder's discretion. The court has the discretion to lower the amount to $200 per work for innocent infringers and to raise it to $150,000 per work for willful infringers. These damage amounts reflect recent increases by Congress and dealing with large-scale infringement over p2p networks offers no reason to raise these damage amounts further. Because the most likely targets of a civil lawsuit in the p2p context are the " keystone " uploaders, who often have several hundred different songs on their computer, existing statutory damages can easily run into the tens of millions of dollars per individual. This is likely to be an ample deterrent for the individuals who most often hold keystone positions on p2p networks. Indeed, it's arguably far too high already to do much good. College students do not have tens of millions of dollars to lose, and conversely those who do have that kind of money do not tend to spend their time trading music files on p2p networks. But civil suits with potentially enormous statutory damages may deter uploading because college students (or more likely the parents of teenagers) will fear bankruptcy. Indeed, the RIAA may have been able to eliminate some file sharing merely by threatening to sue some p2p users, and more when it actually filed a few hundred suits. But if so, existing statutory damages will be more than sufficient to achieve that deterrence. College students are perhaps even more likely to be deterred by the prospect of going to jail. Copyright law includes rather substantial criminal penalties, including prison time, for willful copyright infringement. Under the 1976 Act as originally enacted, copyright infringement was a criminal offense only if the defendant acted willfully and for purposes of commercial advantage or financial gain. Congress expanded criminal penalties rather substantially in the No Electronic Theft Act of 1997, however. The law now provides that willful infringers are criminally …