By Christopher Buccafusco & David Fagundes. Full text here.
Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no financial harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-pecuniary harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s animating theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral foundations theory, to analyze the essential reasons that make owners feel that they have been wronged. Recent work in this field shows that people generally exhibit moral indignation for a variety of reasons, including but by no means limited to experiencing monetary harm. So while copyright law assumes that owners are rational beings who will sue only to protect their creative incentives, our analysis shows that owners will also sue over concerns related to sullied purity, breached loyalty, and a sense of injustice. Outlining the moral psychology of copyright infringement generates both theoretical and practical payoffs. First, it allows us to chart a middle course between the traditional copyright theories of economic consequentialism and moral rights. We show that actively accounting for owners’ innate sense of moral outrage better allows us to craft a copyright system that is truer to its constitutional goals of optimizing creative production. Second, it enables us to explore a variety of different policy levers—statutory, constitutional, and administrative—that could ameliorate the social problems raised by infringement suits not motivated by harm relevant to creative incentives. This Article represents a first step toward a fuller empirical exploration of the subjective experience of copyright infringement, as well as an illustration of the potential that moral psychology and moral foundations theory have for law generally.