In the digital network environment, the threat of piracy has changed. The cost of reproducing a digital work has plummeted towards zero and the channels of distribution have become increasingly decentralized. This shift in the landscape of distributing creative works has posed a fundamental challenge to copyright, a law founded upon control over copying. This essay is a cautionary note on the legislative response to this threat.

Congress has increasingly turned to criminal sanctions in copyright law. While the beginning of the 20 th century introduced criminalization to copyright with the rise of organized piracy rings, the 21 st century promises to transform unauthorized copying into a felonious act. Over the last decade, a series of laws and amendments with criminal penalties have passed, including the No Electronic Theft (NET) Act and the Digital Millennium Copyright Act (DMCA). Whether or not a framework of criminal remedies is more effective at regulating behavior in an environment of mass disobedience, as has occurred in some peer-to-peer networks, is not the primary concern of this essay. Rather, this essay warns that in the rush to punish and deter misbehavior, legislators are essentially criminalizing technological devices and networks.

There are several different theories justifying punishment within criminal law that differentiate the regulation of behavior from a civil context. The imposition of criminal penalties by the state accompany behavior that the law deems morally wrong, that results in harm to society, and/or behavior that is detrimental to the economic well-being of the community. The proper functioning of criminal law is dependent on the fact that social norms generally coincide with the legal justification for crime in order to sufficiently promote obedience and facilitate the law’s enforcement. The expanded criminalization of copyright law as a means of deterrence compensating for the increased difficulty of enforcement cannot in itself be the justification for criminalizing behavior society doesn’t perceive to constitute crime.

On the Internet, where the ease and cost of duplication is not only trivial but also the fundamental means of communication, the criminalization of copying without a competing commercial purpose seems incongruous for most people. The cumulative effect of non-commercial violations may well elude many users, but the punishment for their wrongful conduct more befitting the tort regime aspects of copyright are more appropriately regulated by civil claims for infringement than under criminal law. Criminal sanctions for copyright infringement may help shape future norms of how people use information, but a healthy legal regime requires that the existing norms that contribute positively to the spread of information and art not be overshadowed by an isolated calculation of the deterrent effect of increasingly harsher penalties.

It is the claim of this essay that a precarious new category of technology is being created by the judicial and legislative reaction to the changing landscape of distribution. This class of “copyright contraband” is a result of the tendency to misattribute moral agency to technological systems and devices.   Copyright contraband technologies are claimed to seduce their users to copyright infringement and subversively undermine traditional business models. This essay’s concern over this increasing criminalization of technologies is not only that it may hamper innovation, but also that it serves to undermine our traditional notion of responsibility. Copyright contraband occupies a class of criminal sanctions that penalizes technologies in their design and functionality, rather than the intent of its designers or its users.

Responsibility is the ethical notion most closely related to the legal notion of liability. In the case of criminal law, the notion of responsibility is what performs the moral function of basing criminal wrong not only an act, but also on a requisite intention to commit the act. Isolating the criminal sanctions in copyright enables a focus on the moral justifications for punishment in the era of digital copyright law. The scope of the inquiry attempted here then is whether or not the behavior is morally culpable and therefore deserving of criminal sanctions. In criminal law, sanctions for behavior are justified only when we identify a mens rea connected to a particular actus reus. In the information age, the clarity of intent and causation is further obscured by the distributed communicative nature of the digital network environment. This is especially the case when the technology itself increasingly looks like a platform for a community of people, each of which participates in the functionality of the technology as a whole. This interconnectedness is the premise of the very architecture of the Internet and the myriad of devices and applications that make it up. Combining this architecture with information processing systems that can increasingly perform unpredictably and adapt independent of their designer can dissolve the sense of responsibility throughout the vast networks of this large scale system.

The two case studies examined in this essay are those of DRM and P2P technologies and the criminal sanctions governing them. The example of P2P technology illuminates the relationship between users and technology. The network itself is just a means of connection between people. What is controversial in the case of P2P technology is of course what individuals do in those networks when there is no mediation between them. The legislative response to P2P, in the NET Act and its related amendments, aims squarely at the kinds of files shared and their retail value. The law however places the standard low enough that it includes within its gambit of criminal liability even ordinary users of P2P. This serves to essentially attach criminal liability to the network itself.

In the second case study of DRM and the anti-circumvention provisions of the DMCA, a different dynamic of technology and responsibility is encountered. In these criminal provisions, we encounter a legislative structure that endorses an infrastructure of distribution of digital files with technologic protection measures. Under repeated judicial interpretations of the DMCA, the ability of the device to circumvent is sufficient to be in violation, considered separately from whether or not copyright infringement occurs as a result of the use of that circumvention device. It is the circumvention functionality rather than acts of infringement that are the measure by which the technology could be deemed criminal. The criminal sanctions of the DMCA are therefore attached to the core functionality of the program and reveal the relationship between the designer and the technology.

This essay proposes a methodology to evaluate the moral status of behavior in the digital network environment. Three different conceptual approaches to the notion of responsibility and technology are introduced: (1) the instrumentalist approach; (2) the capabilities approach; and (3) the ideology approach. Each of these accounts for a different type of relationship between individuals and the technologies they use, and each of these has different implications for the degree of responsibility assigned to the design of the technology itself. They all rest on a different conception of what technology means.

The instrumentalist approach is indeed helpful in evaluating simpler technologies, but often fails to account for the complexity of today’s technologies. The capabilities approach to responsibility and technology takes into greater account the functionality of the technology itself and focuses more on the relationship of the creators of the technology to its design. Under this approach, technologies are understood to have general and multiple purposes afforded by the way in which they are constructed. The emphasis is no longer on the particular ends to which the individual uses the device, but on the potential uses to which it could be applied. The technology is no longer ethically neutral, but in fact defined by the risk of harm posed by not only the secondary effects of its intended use, but also the potential improper use or misuse of the technology. The ideology approach to technology and responsibility moves beyond the means-end relationship. Technology under this approach encompasses the vast infrastructure and body of knowledge in which a culture organizes its life and interacts with the world. It is not seen as a means to accomplish tasks, but rather as defining the structure of our social environments, from the design of our urban spaces to the transactions of the marketplace, and from our medical activities to the form of our communication. The ideology approach attempts to reveal the conception of the world as it is embedded into the design of technology itself. It forces us to confront whether the tools and devices that underlie the transactions in our daily life facilitate moral relationships.