Prefer statistics---criminal copyright enforcement is ineffective, which takes out the case and supercharges the link.

Miriam Marcowitz-Bitton et al 23, ISEF Scholar, she received her BLL and MLL degrees at Bar-Ilan prior to earning her PhD at the University of Michigan School of Law as an ISEF International Fellow, Orit Fischman-Afori & Hillel Billauer , Volume 30 Issue 2, George Mason Law Review, “The Future of Criminal Enforcement of Copyright: The Promise of Civil Enforcement”, https://lawreview.gmu.edu/print__issues/the-future-of-criminal-enforcement-of-copyright-the-promise-of-civil-enforcement/, kcab

B. Practical Use and Effect of Criminal Copyright Enforcement in the U.S.

Despite the ever-expanding criminal provisions of copyright law, their effectiveness is questionable, and their use remains low. Statistics reflect these trends.89

Accurately assessing the effectiveness of criminal copyright enforcement is a difficult task. In particular, the deterrent effect of criminal penalties and, in turn, their effectiveness at decreasing infringement are difficult to measure.90 Nevertheless, studies conducted on the topic have indicated that criminal enforcement of copyright infringement has not had a particularly positive effect in deterring potential copyright infringers or in lowering the number of violations.91 For criminal enforcement of copyright infringement to be effective as a deterrent, it must be implemented on a significant scale.92 Yet, criminal enforcement of copyright laws is uncommon.93 It has become increasingly difficult to target copyright infringers due to the ease with which infringers can use technology to hide their identities and prevent their detection and identification.94 These difficulties lead to high costs in indicting and prosecuting copyright infringers.95 The challenges in the criminal enforcement of copyright protections in the digital age are discussed extensively in the literature.96

A review of recent statistics published by the U.S. Department of Justice and the U.S. Sentencing Commission regarding the criminal enforcement of copyright laws shows a steady decline in the number of criminal investigations into copyright infringement, the number of indictments, and the number of convictions.97 Exemplifying the general decrease in the criminal enforcement of intellectual property rights, the data show that the number of new criminal charges filed for copyright- and trademark-infringement declined by around 60% between 2007 and 2012 (from 110 cases against 140 defendants in 2007 to 40 cases against 59 defendants in 2012).98 Criminal convictions show enforcement has continued to decline dramatically from 2012 to 2020 (from 197 convicted offenders in 2012 to under 40 in 2020).99 Another source indicates that the majority of those cases targeted trademark infringement, and that the number of criminal copyright infringement cases was a mere 10 cases or fewer annually for many of those years.100 With respect to copyright alone, the annual number of cases charged seems to decrease from year to year—from 45 in 2014,101 to 12 in 2017,102 to only 7 cases charged in 2020.103 Despite a slight increase in cases charging criminal copyright infringement in 2019, the low and decreasing overall number of cases indicates a decline in criminal prosecution for copyright infringement.104

Moreover, there has been a decrease in the severity of the sentences for criminal infringement over the years.105 Between 2011 and 2020, the average sentence decreased from roughly fourteen months of imprisonment between 2011 and 2016 to only eleven months between 2016 and 2020.106 Interestingly, average sentences in the last ten years were consistently below the average minimum guidelines of the United States Sentencing Commission, which actually increased from around twenty-four months in 2011 all the way up to thirty-one months in 2020.107

Another study on the state of enforcement targeting online copyright infringement across thirteen different countries presents a noteworthy finding.108 This study found that “despite the abundance of enforcement measures, their perceived effectiveness is uncertain,”109 and concluded that “[c]riminal measures are less popular” than all other copyright enforcement measures.110 Other studies have also pointed out that “[a]lthough the massive increase of criminal copyright legislation should have led to more enforcement, the current reality is that criminal prosecutions are scant.”111 While these figures represent only a small sample size and do not present a definitive conclusion as to the effectiveness of criminal copyright enforcement, when considered in light of ever-expanding criminal legislation, they certainly raise questions about the efficacy of criminal sanctions in the copyright context, warranting further study and analysis based on additional data.

Recent legislation expanding criminal penalties for copyright infringement and related conduct also seems not to have had a major effect on copyright infringement and enforcement.

* The NET Act: The NET Act raised significant concerns that indictments would be brought against small-scale and underage infringers; that the fair-use doctrine would become irrelevant; and that educational institutions would have to invest time to remove content that may be deemed infringing.112 These concerns have not been borne out, however, as the Department of Justice has continued to focus enforcement efforts on commercial or “systematic” infringers.113 Indeed, Professor Eric Goldman argues that the Act has had no actual impact on the amount of copyright infringement.114 According to Goldman, the main reason for the act’s ineffectiveness is the government’s failure to implement or enforce it in a serious manner.115 Additionally, budgetary restrictions and the public’s limited knowledge about the Act have contributed to its ineffectiveness.116 These circumstances, when paired with the low likelihood of detection and social norms and behaviors that facilitate copyright infringement, have led to notably low levels of public compliance with the Act.117

* The DMCA: Another example of specific legislation that further expanded the criminalization of copyright infringement but has failed to curtail infringement in practice is the Digital Millennium Copyright Act (“DMCA”).118 A report by the Electronic Frontier Foundation found the DMCA to be a threat to the freedom of speech, scientific research and advancement, the fair-use doctrine, and competition and innovation.119 The report cites a collection of court cases that enumerate the negative effects that the enforcement provisions of the DMCA—both criminal and civil—have had in these areas.120 As discussed below, the effects of the DMCA’s civil enforcement measures are also controversial. Yet, from a criminal law perspective, the DMCA has been described as ineffective in preventing copyright infringement, and very few criminal charges have been brought under its criminal enforcement provisions.121

* The ProIP Act: The ProIP Act122 has been heavily criticized for its clear preference of industry rights over other important social norms, which has led to a difficult outcome—the prosecution of conduct that society does not perceive as criminal.123 Grace Pyun has argued that such legislation further deepens the gap between the public and the legislator.124 These types of legislation force law enforcement officials to implement and enforce laws that strike an incorrect balance between the rights of copyright owners, on the one hand, and the rights and interests of individual citizens on the other.125

III. Rise of Civil Enforcement Frameworks in the Digital Age

Civil copyright enforcement mechanisms have developed extensively in the last two decades, providing new frameworks to confront emerging challenges and adapting traditional remedies to the needs of the digital age. Much attention has been paid to the role of online intermediaries that may serve as gatekeepers to the digital environment, such as internet service providers and digital platforms.126 Legal discourse has focused on turning these noninfringing third parties into enforcement agents and has considered the limits of their liability.127 Various measures have been developed to promote deterrence and efficient redress, but it is unclear to what extent their goals have been accomplished.128 Commentators have noted that “[i]n reality, copyright infringement online is a complex phenomenon to which many factors contribute[.]”129 Nevertheless, civil enforcement is on the rise.130 A similar trend of even greater magnitude has been observed in the EU.131 At the same time, users have voiced concerns about the chilling effect of current enforcement mechanisms on permitted uses of copyrighted materials.132 Risk-averse users avoid making potentially permitted use of works due to the economic burden of disputing infringement claims and the high cost of litigation.133 Consequently, criticism of the imbalances of copyright law has intensified.134 At the same time, the availability of many civil enforcement efforts in the digital age offers an alternative to criminal proceedings, the use of which has steadily declined as noted above.

Two prominent frameworks demonstrate the strength of civil enforcement procedures in the digital era: notice-and-takedown mechanisms employed by automated systems and statutory damages. In addition, the recently established Copyright Claims Board within the U.S. Copyright Office provides an additional avenue for civil enforcement. Together, these mechanisms offer a powerful civil enforcement package with a potential synergic effect that may replace the need for criminal enforcement. This Part reviews these civil frameworks below, stressing their effectiveness from the point of view of rights holders as well as criticisms raised by other stakeholders.