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Journal of Technology Law & Policy

Document Type

Note

Abstract

I argue that digital piracy, on the individual level and within the specific context of compact discs (CDs) and digital versatile discs (DVDs), is motivated primarily by the relative price of purchasing an original item versus the costs of compiling an illicit version; therefore, corrective pricing and redistribution alone could significantly affect the decision to pirate and ultimately reduce the practice. To illustrate this hypothesis, I present a rough econometric model of how a consumer might price a homemade pirated copy of either a CD or a DVD; implicitly I assume that CDs are used to capture and store motion pictures. I argue that one solution to combating widespread fears about digital piracy is to correctly price the various inputs (costs of recording devices, blank media and software) as well as to encourage artists or producers to give added content or value to the original media. This added value I dub the “nouveau factor.”

My analysis focuses predominantly on the individual, the hypothetical homo economis but with a slight flaw. I assume that the individual is not engaged in widespread attempts to sell unauthorized copies of copyrighted works; the behavior I try to model is that of the tennis shoe pirate who copies a friend’s CD or downloads a movie off the Internet. The only legally meaningful distinction is that such behavior, while still a violation of the 1976 Copyright Act, prosecution is less likely and, in the event of prosecution, the resulting remedies will be diminished. I am not focusing on widespread commercial piracy such as the mass manufacture of “bootleg” copies intended for retail sale where the courts impose nontrivial damage awards. While this distinction is not profound, within the confines of my attempted economic model, I only address individual motivation because adding a for-profit element would require a different analysis.

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