CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, September 17, 2013

Fishman on Separated Powers of Moral Entrepreneurship

Joseph Fishman (Harvard Law School) has posted Copyright Infringement and the Separated Powers of Moral Entrepreneurship (American Criminal Law Review, Vol. 51, Forthcoming) on SSRN. Here is the abstract:

This Article examines the copyright industries’ “moral entrepreneurs,” sociologist Howard Becker’s term for enterprising crusaders who seek to change society’s social norms regarding particular conduct. Becker’s conception of moral entrepreneurship consists of two groups performing separate tasks: rule creators work to translate their preferred norms into legal prohibitions, and then a separate class of enforcers administer those prohibitions. In a limited sense, U.S. copyright law hews to this scheme. Legislation such as the No Electronic Theft Act of 1997 and the Artists’ Right and Theft Prevention Act of 2005 has assigned the federal government an increasing role in defining intellectual-property deviance. At the same time, however, the Copyright Act’s civil enforcement scheme elides this separation of powers by allowing the rule creators to serve as their own enforcers. Between its criminal and civil remedial schemes, the Copyright Act allows for two different paradigms of moral entrepreneurship to operate in parallel: one assigns enforcement to the state while the other entrusts it to the original rule creators. The result is that both rule creators and prosecutors can use infringement litigation to try to map the moral boundaries of copyright.

A side-by-side comparison of these two enforcement paradigms shows that the Department of Justice has proven more effective at instilling a norm against copyright infringement than the rightsholders whose interests it represents.

By selectively focusing on unsympathetic defendants, prosecutors are defining deviance while avoiding the backlash that has greeted civil plaintiffs. This story offers a lesson, corroborated by other historical examples, concerning what I call the separated powers of moral entrepreneurship. Because professional enforcers tend to lack the moral fervor of the rule creators, they may decline to enforce the rule in situations where the rule creator, if given the opportunity, would be cognitively incapable of doing so. This quality makes professional enforcers better equipped to avoid backlash when particular enforcement activities are out of step with widely held social norms. A rule creator who enforces her own rule risks cannibalizing the favorable norms upon which she had intended to build. As a result, where social norms are in flux, the agency cost of delegating enforcement to others is actually a benefit.

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