Research Matters: Jonathan Masur on “Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor and Deputy Dean Jonathan Masur and Christopher J. Buccafusco, a copyright expert and professor at Chicago-Kent College of Law, wrote “Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law.” The paper, to be published in 2014 in the Southern California Law Review, explores the use of criminal penalties for copyright violations, and the vigorous debate over whether such remedies are useful or ethical. Masur spoke about the work.

Q. How did this research come to be?

A. People have been thinking and talking a lot about criminal sanctions in copyright in recent months. That’s due to a couple of factors. One, there were two new bills introduced in Congress: SOPA, the Stop Online Piracy Act, and PIPA, the Protect Intellectual Property Act, and they were introduced by big media companies that were upset about digital piracy of their works. They wanted to increase criminal penalties for people who were copying or reproducing work. The other thing was the prosecution and eventual suicide of Aaron Swartz, the hacker and activist. The prosecution was spurred by his illegal downloading and copying of files from JSTOR through MIT’s servers. So there was an enormous amount of press about this, and a lot of academic writing, and many people were arguing that while there’s an economic or utilitarian case for criminal sanctions in copyright, it just isn’t morally right. What we wanted to do was take a step back and ask, is the premise correct? Is there even an economic case for criminal sanctions for intellectual property violations? Because if that premise isn’t right, then we don’t even have to have this complicated economic versus moral debate.

Q. What did you find?

A. We conclude that there is only a very, very limited case for criminal sanctions in copyright, and it applies only to people engaged in mass copyright violations, generally for commercial purposes. Imagine someone on the street corner selling hundreds upon hundreds of bootlegged DVDs of a movie.  There’s a case for criminal sanctions in that sort of an instance, but basically nowhere else. And certainly there’s no case for criminality that would be nearly as far-reaching as what was proposed in PIPA and SOPA. We also look at patent law, and we find there is no case for using criminal sanctions in patent law whatsoever. There are no criminal penalties in patent law as things stand, but people have often proposed making patent infringement criminal, and we say that would be misguided.

Q. Then what would deter intellectual property violations?

A. It’s very costly to put someone in prison. It’s a terrible thing for society. That should always be a last resort. It’s much better to use monetary penalties, just to make people pay, because you don’t ruin a person’s life, take the person out of society, hurt the person’s family, and so forth. Civil penalties are the default form of relief, and we only want to use the criminal law when we think that monetary penalties will be insufficient. We found that there are very few instances in the world of intellectual property where that’s the case.

Q. Why is this important?

A. There is an enormous battle going on right now about the proper scope of intellectual property protections. This could have enormous consequences for the economy generally—how we try to structure a knowledge economy, an innovation economy. The debate about the proper scope of intellectual property protections inevitably arrives at the question of whether we should use criminal law, and that inevitably gives rise to the question of whether the criminal sanctions are sensible, either from a criminal or moral perspective. There are a lot of very powerful interests who believe we ought to use criminal law to deter people from committing copyright violations. We want to show that from any angle, criminal sanctions are inappropriate.

Q. Did anything surprise you in the research?

A. The thing that surprised me most was that there are an enormous number of very smart people working in intellectual property who have been making tremendous contributions to the field of intellectual property but don’t necessarily know much about criminal law. There isn’t much overlap.

I teach criminal law and I also teach patent law, and whenever I say that to someone in the IP world, they say, ‘that’s a funny combination.’ But it turned out to be very useful because I felt that I knew something about criminal law that I could bring to bear that other people hadn’t considered.

Q. What’s next?

A. There are important lacunae in this paper. One is that we don’t talk at all about trademarks. Trademarks are another extremely important area of intellectual property that’s been in quite a bit of flux lately. Trademark law includes criminal sanctions, and they’re used relatively frequently. We want to try and think about how trademarks relate to these other fields. We also don’t talk much about trade secret law, another area of intellectual property that involves criminal penalties. I think we want to think about whether criminal sanctions are appropriate for trade secret law as well. The goal is a more unified understanding of how these fields of intellectual property relate to one another through the remedies that are involved. Can we understand the whole of intellectual property and the innovation economy more deeply by asking when criminal penalties or just civil penalties are appropriate?