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Casualties in the War Against Warez
In Congress' legislative debates about the NET Act, warez traders were portrayed as the poster children for rampant Internet piracy.84 However, other infringement activities, such as "softlifting" (exceeding a license to make unauthorized copies) and commercial piracy, have a significantly greater impact on copyright owner revenues. So why did Congress target warez traders despite their relatively small footprint on overall piracy?
Despite the obvious inspiration—the LaMacchia judge invited Congress to fix the problem85—another reason may offer a better explanation. Americans hate enemies that are impossible to locate and destroy using command-and-control tactics, and that describes warez traders. Warez traders operate stealthily, behind the Internet's opaque veil, and are impossible to spot offline. Further, online, warez traders exude an air of cockiness and invincibility that members of Congress may interpret as a provocative challenge to their power and authority. These attributes make warez traders the unseen enemy that must be destroyed. In a sense, Congress declared war against warez traders through the NET Act. Now Congress wants to triumphantly claim victory over villains who don't fight fair.
While the enemy has suffered a few casualties in Congress' war against warez, there has been no victory, and it will never come. No quantum of stiffened criminal penalties will change that result. Warez trading is about ego, prestige, and reputation; so long as intangible assets are fenced off, a group of enthusiasts will seek recognition for breaching the fences. In that sense, increased criminal penalties may counterproductively encourage warez trading by making it a little more daring and impressive.
Meanwhile, every war has a collateral cost, and the war against warez is no exception. In the process of outlawing warez trading, Congress also criminalized most American citizens. For example, tens of millions of Americans engage in P2P file sharing,86 an activity legally indistinguishable from warez trading. But even Americans who don't trade files may break the law simply by willfully infringing $1,000 of retail value in 180 days, or $5.56 of willfully infringed copies per day. In our digital society, the average American makes copies—lots of them, every day—just to function.87 The ubiquity of copying makes the dollar standard a criminal threshold that far too many Americans meet easily.
But so what? Systematic noncompliance with the law is a fact of life in our overregulated society, and we have found ways to tolerate or ignore the associated risks. Meanwhile, with stretched prosecutorial resources and the likely futility of prosecuting sympathetic defendants,88 the risk of an average American being prosecuted for routine acts of copyright infringement is effectively zero. Warez traders get a little more prosecutorial attention,89 but even the number of small-scale warez traders who have been prosecuted is trivial.
On the other hand, criminal copyright infringement has gone too far, and everyone—even Congress—knows it.90 By over-criminalizing activities that are required to function in our digital society, criminal copyright law has become unjust, making it impossible for the average American to respect and comply with the law.91
Despite this fact, the trend is for tougher and more pervasive criminal laws. Congress has been convinced by well-funded special interests that the piracy situation is cataclysmic. Thus, Congress regularly holds hearings demanding more pirate busts,92 and three new bills were introduced into Congress in summer 2003 to toughen up criminal copyright law.93 When Sen. Hatch jokes about blowing up the computers of copyright infringers,94 he's not joking at all—he's expressing frustration at Congress' seeming inability to get Americans to respect the laws that industry lobbyists have persuaded him and his peers are so desperately needed.95
To satisfy Congress, the Department of Justice must continue to deliver high-profile criminal copyright convictions. However, to avoid mass panic and undercutting popular support for their mission, the Department of Justice must pursue only cases that permit average Americans to distinguish the criminal's conduct from their own.96 Unsympathetic warez traders provide a perfect target for the Department of Justice to balance these conflicting objectives.97 As a result, it seems likely that more warez traders will suffer the consequences of Congress' stubborn desire to change America's addiction to copying.