Buccafusco and Fagundes, ‘The Moral Psychology of Copyright Infringement’

Introduction:
… This Article presents a novel view of the complex moral psychology of infringement. It does so both to complement extant critiques of copyright’s incentivist story and to provide a realistic account of owners’ motivations for infringement on which a more effective copyright regime may be built. We elaborate these claims as follows. Part I highlights the contrast between the robust critiques of copyright’s theory of creation and the paucity of attention to its theory of litigation, and illustrates the social costs produced by increasingly common infringement suits animated by non-financial concerns. Part II develops a psychology of infringement, rooted in MFT, that illuminates the plural motivations – including, but ranging far beyond, pecuniary harm – that underlie owners’ decisions to sue (or threats to do so). Part III elaborates the implications of our analysis. We first show how our claims forge a middle path that mediates between the traditionally opposed copyright paradigms of market-focused utilitarianism and moral rights. Second, we identify a series of policy levers that lawmakers could employ to reform copyright law in a way that is both mindful of the realities of owners’ moral psychology and still true to copyright’s goals of optimizing creative production. Finally, the Conclusion reflects on possibilities for future work framed by our analysis, such as empirical research that would further shed light on copyright owners’ subjective experience of infringement.

Christopher Buccafusco and David Fagundes, The Moral Psychology of Copyright Infringement, Minnesota Law Review vol 100 2433 (2016).

First posted 2016-08-08 11:39:33

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