Terry Fisher, in Chapter 4 of his forthcoming book, Promises to Keep, suggests ways in which copyright owners could be treated by the law more like landowners.

[A] difference between the protections enjoyed by landowners and those currently enjoyed by copyright owners pertains to the role played by the criminal justice system. When a person walks past the “Keep Out” signs posted on the edge of my land, he triggers all of the private rights we have discussed thus far. But he also violates the law of criminal trespass. The result is that I don’t have to expend the time, money, and energy necessary to bring a private lawsuit against the intruder, recover damages, secure an injunction against future entries, etc. I can simply call 911. The police will come and arrest her, and the courts will subsequently impose upon her a criminal sanction – a fine or, in extreme cases, imprisonment. Awareness of those penalties deters most potential trespassers from entering my land in the first instance. In short, public law powerfully reinforces my private rights.

In theory, copyrights are also buttressed by criminal sanctions. Title 17, section 506(a) of the United States Code provides:

Any person who infringes a copyright willfully either—

(1) for purposes of commercial advantage or private financial gain, or

(2) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1000,

shall be punished as provided under section 2319 of title 18, United States Code.

Section 2319, in turn, sets forth ranges of potential penalties for violations of these two provisions. The upper bounds of those ranges are formidable: repeat offenders of subsection 1 can go to jail for up to 10 years, and repeat offenders of subsection 2 can go to jail for up to 6 years. In addition, defendants face the “forfeiture and destruction... of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords.”

In two respects, the power of this provision has recently been increased in response to the growing frequency of copyright infringement over the Internet. First, subsection 2 was added to the statute in 1997 in order to catch people who engage in widespread infringement but who don’t make a profit from their activities. (The trigger for the change was a judicial ruling that the operator of a bulletin board service who distributed copyrighted software for free over the Internet could not be convicted under subsection 1, because his activities were not “for commercial advantage or private financial gain.” The amendment to the statute designed to plug this gap was known as the “No Electronic Theft Act.”) Second, the United States Department of Justice has recently begun to devote more resources to the detection and prosecution of intellectual-property crimes. Until the mid-1990s, copyright infringement was virtually never prosecuted. In 1995, the growing frequency of violations, particularly over the Internet, prompted the Justice Department to establish a new “Computer Crime and Intellectual Property Section.” Since then, rates of prosecution have increased significantly.

Despite these reforms, however, the criminal copyright statute remains much weaker, in practice, than the law of criminal trespass. Three limitations deprive it of most of its apparent force. First, the Federal Sentencing Guidelines, as applied, sharply reduce the potential penalties for violating the statute. Even large-scale commercial pirates rarely receive significant jail time.

Second, only “willful” copyright violations can result in criminal liability. To be sure, in order to convict a person of any crime, the prosecution must prove that it was in some sense intentional. For example, a conviction for criminal trespass ordinarily requires proof that the defendant entered the property deliberately (getting thrown involuntarily from your horse onto someone’s lawn will not expose you to criminal sanctions) and that the defendant had reason to know the owner of the land did not want him there (hence the requirement that unenclosed land be posted with “No Trespassing” signs). But a conviction for criminal copyright infringement requires more. The prosecution must show that “that the defendant knew that his acts constituted copyright infringement or, at least, knew that there was a high probability that his acts constituted copyright infringement.” At least one court has held that this excuses someone who has an honest and good faith belief that his actions were lawful. Because, as we have seen, most American Internet users currently believe that they have a right (at least a moral right, and perhaps a legal right) to share recordings online, they could well escape liability on this basis.

Finally and most importantly, despite the increased interest of the Justice Department in intellectual-property crimes, the amount of government resources available to detect and prosecute violations of section 506(a) is tiny compared to the amount available to detect and prosecute trespasses on land. Hundreds of thousands of local police, state prosecutors, and state and local courts can be invoked to punish intrusions upon private property. Vastly fewer FBI agents and federal prosecutors can be called upon to punish copyright infringement. The activities of home, noncommercial copyists are especially unlikely to trigger law enforcement. (Virtually no one any longer credits the multicolored warnings that appear at the beginning of every home video that the FBI will get you if you misuse the tape.)

If we took seriously the claim that copyrights deserve the same protection as real property rights, we would eliminate each of these impediments to effective enforcement. We would modify section 506(a) by increasing the actual sanctions that violators could expect and lowering the “state of mind” requirement to match the kind of “general intent” that suffices for a criminal trespass conviction. Most importantly, we would dramatically augment the law-enforcement resources available to detect and punish violators.

Strategically, the most important targets for such an intensified campaign would be the people who … knowingly permit their computers to be used as “supernodes” in the modern peer-to-peer file-sharing networks. With relatively modest detective work, they could be identified. There are relatively few of them; thus the courts would not be overwhelmed with cases. And the volume of copyrighted material that they “distribute” almost certainly would satisfy the requirements of subsection (2) of the statute. A few well-publicized prosecutions, followed by even modest periods of imprisonment, would undoubtedly go far towards discouraging people from serving as supernodes in the future. And that, in turn, could cripple at least the current versions of the P2P networks.