For many years, we've pointed out that so much policymaking around copyright law is what we'd argue to be purely "faith-based." The fact that there is little to no actual evidence that stronger copyright protections lead to better outcomes for the public, the economy or for society is ignored by people who just know it must be true
. And the constant assertions about extending and expanding copyright always seem to come from this same faith-based positioning. An exploration into the empirical basis for copyright law finds that there basically is none
and the reason we have copyright is because a couple of centuries ago some people thought it was a good idea, and no one's really bothered to check since then.
One of the most ridiculous examples of this "faith-based" reasoning is the belief, among many, that the way to stop widespread copyright infringement is just to increase the punishment for those who are caught. Sure, you can understand the armchair economists' reasoning here: if you increase the punishment, you're increasing the "cost," which should decrease the activity. But, that's just wrong on many, many levels. First, let's take a step out of the copyright realm and into the criminal justice realm. After vastly expanding punishment (via things like "three strikes" laws), many, many people (even those who supported such programs) are now admitting that long sentences don't actually do much to deter crime. While there were some studies in the 80s and 90s suggesting long sentences reduce crime, more recent (and much more thorough) studies have basically rejected that view. A recent survey
of many studies in the area found little support for the idea that longer sentences deter criminal activity.
A bunch of other, even more recent, studies agree. A massive report from the University of Toronto goes through the history of the support for harsher sentencing, and a ton of historical and modern research, and concludes
At this point, we think it is fair to say that we know of no reputable criminologist who has
looked carefully at the overall body of research literature on “deterrence through sentencing”
who believes that crime rates will be reduced, through deterrence, by raising the severity of
sentences handed down in criminal courts.
The evidence supporting this conclusion has been accumulating for decades. In the 1970s,
thoughtful reviewers were cautious in their conclusions, suggesting only that the deterrent
impact of harsh sentences had not been adequately demonstrated. More recently, we, and
others, have been more definitive in our conclusions: crime is not deterred, generally, by
Another major study, from two years ago, by the National Research Council more or less says the same thing
: "the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure." Another recent research report
, which also delves deeply into the arguments from the 70s and 80s now concludes: "The empirical work of the past thirty-five
years has presented evidence that some of the deterrence we thought
that we were likely to get was not, in fact, forthcoming.... " Hell, even the National Institute of Justice, the "evaluation" agency that's a part of the US Justice Department (which regularly pushes for harsher punishment) says directly on its website
Increasing the severity of punishment does little to deter crime.
Laws and policies designed to deter crime are ineffective partly because criminals know little about the sanctions for specific crimes. Seeing a police officer with handcuffs and a radio is more likely to influence a criminal’s behavior than passing a new law increasing penalties.
That same page further notes that "sending an offender to prison isn't a very effective way to deter crime."
At this point, you have to be willfully ignoring the evidence
to argue that throwing people in jail for a long time is a way to deter crime. The reasons why the simple theory at the top of this post is wrong are that (1) most people committing crimes don't expect to get caught and (2) many people who are committing crimes don't even know what punishment might be, or vastly misunderstand the likely punishment.
Okay, so let's jump back into the copyright world. For reasons that are beyond comprehension, the UK government has announced plans to try to put copyright infringers in jail for 10 years
. The UK's Intellectual Property Office recently released a report, following a consultation on this issue, in which it clearly supports a 10-year sentence
for infringement, arguing:
The UK is frequently cited as the world leader in IP enforcement, and as Minister for IP
I want to do everything I can to preserve this standing. The provision of a maximum
ten year sentence is designed to send a clear message to criminals that exploiting the
intellectual property of others online without their permission not acceptable.
The report also states, unequivocally:
The Government believes that online offences should be treated no less seriously than
their physical counterparts. Harmonising these will provide a deterrent effect to
criminals and, where criminality continues, provide for tangible punitive action.
Notice, of course, that there is no citation for this view. And, also, the fact that it clearly contradicts a ton
of empirical research, as discussed above. Perhaps noticing the same thing, Kieren McCarthy at the Register sent a FOIA request to the Intellectual Property Office asking them where the 10 year maximum sentence idea came from. The answer? The IPO just made it up
based on... nothing.
Such information was derived from our analysis of the evidence and opinion provided to us by a wide spectrum of interested parties, over the consultation period.
No empirical understanding of the issues of punishment and deterrence. No actual understanding of the issues. Just a bunch of people gave us their opinions, and we just plucked 10 years out of thin air. And, of course, as McCarthy notes, even that line above is clearly untruthful, since the vast, vast majority of the submissions provided to the IPO opposed the 10-year sentence proposal, which the IPO then stuck with anyway. In the IPO's response to McCarthy, it also cited a couple of studies concerning copyright, but both of those studies advise against
such an increase in sentencing.
So it appears that the Intellectual Property Office is focused on increasing criminal penalties for copyright infringement to 10 years in jail based on proactively and willfully ignoring the empirical evidence
both in the criminal justice world and in the copyright world.
And then they wonder why the public doesn't respect copyright law?