The Irrational Pirate - Tom Urbach

BROOKLYN LAW SCHOOL
The Irrational Pirate
A Behavioural Analysis of Copyright Law in the Digital Age
An essay by Tom Urbach for Prof. Bailey Kuklin's "Rationality & Responsibility" Seminar
Introduction
(or: The False Justification of Copyright Law)
pi·rate /ˈpīrət/ noun
1. a person who robs or commits illegal violence at sea or on the shores of the sea.
2. a person who uses or reproduces the work or invention of another without
authorization.1
This is an essay about pirates. Not those of the kind that scream "Ahoy!" with a parrot on their
shoulder, but rather the kind that illegally consume copyrighted works. In this essay I would
like to justify the actions of these pirates; by relying on studies that examine the limits and
nature of the human mind, my claim is that the current copyright law and market are the faults
of these rising pirates.

1
”Pirate”, DICTIONARY.COM (2015) http://dictionary.reference.com/browse/pirate

The Irrational Pirate Tom Urbach
2
The classic view of intellectual property law suggests that piracy is a fatal threat to the incentive
to engage in creative labor. Indeed, if a creator will see that her works are being used by free-
riders, she will probably stop creating, as it will not be economically beneficial for her to
continue. This economical analysis stands in the heart of the justifications for copyright law: it
provides legal protection and tools for creators, to make sure they are being rewarded for their
creative works. The provision of the right to exclude is even embedded in the Constitution:
“Congress shall have the power… To promote the progress of science and useful arts, by
securing for limited times to authors and inventors the exclusive right to their respective
writings and discoveries”.2
But this justification assumes a fact that was discovered to be wrong
throughout the years: the economic analysis assumes that the human mind is rational.
In this paper I would like to suggest that the current copyright laws fail to comply with the
nature and limits of the human rationality, as consumers of copyrighted works are in fact
irrational. I argue that the law ignores from the irrationality of the individual, and that most
of the issues derive from the technological advancements of the digital age. Namely, the
emergence of new ways to consume copyrightable arts, without updating the law accordingly,
allows for the human mind to act irrationally, potentially in an economically harmful way. My
thesis, therefore, is that copyright law is not optimized to the digital age, mostly due to the
irrational mind of humans.
My key assumption in this article is that people will always prefer to be free riders. Although
it will be hard to conduct an empirical survey that will show how many people illegal download
copyrighted materials (it will provide wrong results as some people may lie), it is safe to assume
that the percentage is very high.

2
U.S. Constitution, Art. 1, §8 cl. 8

3
With the technological advancements of the digital age, it became very easy to find content
online (illegally), and when the option to pay (legally) faces consumers: they will see the free
and an easy alternative, and might choose it instead.
In their minds, people probably think they should illegally download content because “if
everyone do it, why shouldn’t I”. Together with the fact that they steal a digital (“virtual”)
copy, i.e. there is no cost of burning the CD or shipping it – they might see it as the better
option to steal. Most people would retain from stealing a physical product, but when it comes
to a digital copy of a copyrighted work, the approach is different ((as intellectual property is
non excludable and nonrival).
In this paper I ask to check what are the rational (or irrational) reasons for this kind of piracy.
Each chapter will examine a different potential reason for it, from a behavioral analysis point
of view. The examination I will present does take into account the fact that people are irrational,
as opposed to the classic economic reasoning. The aggregative collection of my arguments is
the reason why illegal downloads are the natural choice for consumers, as I see it.
I will address two types of actors in the legal system: the creator of a copyrighted work (usually
the plaintiff in such disputes) and the consumer of a copyrighted work (usually the defendant
in such disputes). From the consumer’s point of view, I would argue that various reasons make
illegal consumption of art to be the best choice; and the irrationality of creators will be mostly
examined through the endowment effect and its implications on the prices of copyrighted
works.
Unfortunately, academic legal writing that connects rationality with copyrights barely exists,
if any. Therefore, I will rely on behavioral researches that analyze the law entirely, and apply
them particularly to copyright laws based on the notions I suggest. The connections will be
artificial yet logically acceptable. As a disclaimer, I would like to point out that most of my

4
conclusions are relevant to the digital age (due to the technological advancements), and thus
my justifications for piracy may not have been true 20 years ago, but I definitely believe they
are today.
Chapter 1: Copyright Law Fails to Deter People from Piracy
Perhaps the most fundamental reason to infringe copyrights is that the law is just not
intimidating enough. In 2011, Professor Tehranian presented a thought experiment for which
he checked how much an unremarkable person could be sued for copyright infringements in a
single unremarkable day.3
He concluded that without even knowing, most of us could be liable
for millions of dollars in every single day, which sums up to 18 billion dollars of copyright
violations each year. However, it is critical to keep in mind that this thought experiment
assumes full enforcement of copyright law (for every violation), and also assumes that courts
apply the maximum penalty on those involved in copyright infringements – two key
assumptions I would like to challenge in this chapter (among other things).
I will start by addressing the deterring disability of the copyright law. Professor Hargreaves
once stated about copyright law: “People are confused about what is allowed and what is not,
with the risk that the law falls into disrepute.”4
In other words, when the law is so broad that
pretty much everyone is a copyright infringer, in my opinion people will stop paying attention
to the law. In a criminal law analysis, several researchers found that most people do not know
the law and its included punishments.5
This conclusion may also be applied to copyright law,
to argue that it became irrelevant once it became so broad and confusing to understand. This

3
JOHN TEHRANIAN, INFRINGEMENT NATION (2008)
4
I HARGREAVES, DIGITAL OPPORTUNITY: A REVIEW OF INTELLECTUAL PROPERTY AND GROWTH 9
(2011)
5
John M. Darley, Kevin M. Carlsmith & Paul H. Robinson, The Ex Ante Function of the Criminal
Law, 35 LAW & SOC’Y REV. 165 (2001).

5
can also be used as a possible explanation to the fact that so many people are involved in
copyrights infringement.
The basic model of law suggests that people will refrain from wrong activities if the likelihood
of being captured and the severity of the punishment are greater than the benefit of these
activities.6
Namely, if a pirate thinks that he is likely to get caught and fined for high amounts
(as the above discussion suggests), he might reconsider his will to download copyrighted
works. However, as I see it, the reality is different than this model, in regards to copyright law.
First of all, as technology advances, pirates find new ways to disguise their activities. By
changing their computer’s IP address frequently, and by using shared WiFi networks (such as
those one can find in public libraries), tracking them down is a very complex task. These pirates
manage to stay invisible from the eyes of the authorities, and even if an infinite amount of
resources would be invested in capturing pirates, it might not be possible to catch them all due
to this use of technology.
But my main thesis in this chapter is that this approach of the law, of intimidating pirates from
these wrongful activities, is not optimal by itself. The infinite amount of resources (suggested
in the previous paragraph) is naturally not practical, and thus trying to catch each and every
pirate is impossible. Even while disregarding the uprising ability of pirates to disguise their
activities, I believe the law has inherent flaws that will never be fixed unless the approach is
dramatically changed. In other words, I argue that some other motives and logical reasons could
stop copyright infringements, rather than the fear of the law.
As Peter May once suggested:

6
Matthew Silberman, Toward a Theory of Criminal Deterrence, 41 AM. SOC. REV. 442 (1976).

6
“Both sets of motivations are relevant in practice, and legal actions are often
necessary for the enforcement of contracts. Nonetheless, the distinctions are
analytically useful in drawing attention to the other factors than deterrent fears
in motivating compliance with regulations and in suggesting that regulation
can sometimes more fruitfully be thought of as a social contract.”7
Observing copyrights as a social contract, instead of an intimidating regulation, will benefit
both creators and consumers, as I see it. As copyright law often deals with creativity, inspiration
and expanding the boundaries of the human mind, it is only inevitable to examine it in the eyes
of the society and cooperation between both sides. Evoking the copyright discourse with terms
of fear and likelihood of being captured will block the way of the creative mind and cooperative
approach.
A very interesting tax-related experiment was conducted by Richard Schwartz and Sonya
Orleans: An aggregation of tax paying Americans was divided into 2 groups: The first one was
taught about the punishment of not paying taxes (and the discourse was revolved around fear),
and the latter was taught about the greatness of taxes. The researchers hired experts that
explained to the latter group about the positive outcomes of taxes, and how their distribution
highly contributes to society. The conclusion was that the latter group had much more
motivation to pay taxes,8
which shows the advantage of positive persuasion over fear and
deterrence. By using the same rational, I hereby suggest that educating the public about the
positive aspects of respecting one’s copyrights will have greater effects than the fear-
related copyright law.

7
Peter May, Compliance Motivations: Affirmative and Negative Bases, 38 LAW & SOC’Y REV. 41, 61
(2004).
8
Richard D. Schwartz & Sonya Orleans, On Legal Sanctions, 34 U. CHI. L. REV. 274, 283 (1967).

7
This conclusion can be made broader and stretched to a greater extent, by arguing that the law
does not have any effect on the human mind, at all. This rational analysis is based on a study
that shows that climate change and environmental regulations have zero effects on
corporations’ activities.9
Although this research was conducted on corporations and on
environmental issues, I believe its conclusion may be relevant to individuals with regards to
copyrights as well, i.e. to the extent the law deters pirates. Another study suggests that the
severity of the punishment does not really affect the rational decision of offenders10
– so even
if presented with the possibility of being liable to 18 billion dollars annually (from copyright
infringement as described above), it is very unlikely that the pirate will act differently.
However, not all explanations for the irrelevance of the law can fit our discussion about
copyrights. Measurements of “community enforcements” and models of reputation suggest that
people prefer to obey the law because of these social reasons. These models do not apply here,
as pirates in the digital age conduct their wrongful activities at home, far from the eyes of their
surrounding society, far from the judgment of social norms. Not only can they stay invisible
from the eyes of the authority, as described above, but they can also stay invisible from the
society. No one can be mad at them for downloading illegal content, or criticize them for it,
simply as no one else will know. Therefore, these kinds of informal regulation of copyright
law (with the society as a tool) is hard to argue for.
The last analysis I would like to apply in this chapter regards to “the expressive function of the
law”. According to this approach, the law is signaling to the individual that most of the
members in the society agree with its content, and in this way the law prevents its violation.11

9
Robert A. Kagan, Neil Gunningham & Dorothy Thornton, Explaining Corporate Environmental
Performance: How Does Regulation Matter? 37 LAW & SOC’Y REV. 51, 58-60 (2003).
10
David A. Anderson, The Deterrence Hypothesis and Picking Pockets at the Pickpocket’s Hanging,
4 AM. L. & ECON. REV. 295 (2002).
11
Cass R. Sunstein, On the Expressive Function of the Law, 144 U. PA. L. REV. 2021, 2045 (1996).

8
Therefore, even when the law is failing to educate (or scare…) the individual, its expressive
value may help to prevent copyright infringements. The expressive analysis is also narrowing
the options to participate in piracy, i.e. lowering the number of ways to download copyrighted
materials and making the legal action (paying for these materials) – the default one.12
The
reasoning behind this statement is that the “conditions” that may have allowed broad copyright
infringements (such as the existence of many websites to download the content from) are
narrowed down as people think that the majority of the society agree with the law, as advised
above (due to the expressive role the law plays).
* * *
In the following chapters, I ask to examine some specifics of the copyright law and the evolved
standards in the digital age, and purpose that the natural choice for consumers is to download
content illegally, due to the rational limits of the human mind. Some of these limits include the
depression that derives from too many choices, the complexity of licensing agreements and the
expensive price tag of paying for works legally. I will hereby expand on each one of these
limits and connect them to the way copyright law have developed throughout the years.
Chapter 2: There Are Too Many Options for Legally Consuming Copyrighted Works
In this chapter I would like to claim is that there are too many choices available for a consumer
that would like to use an intellectual property of someone else. Failed decision making, that
derives from this overload of choices, causes consumers to prefer to illegally download
copyrighted content. When mentioning the large amount of choices, I am not talking about the
variety of copyrighted creations in existence (a skyrocketing amount that is not measureable as

12
Edward Cheng, Structural Laws and the Puzzle of Regulating Behavior, 100 NW. U. L. REV. 655
(2006).

9
no registration is required anymore with the copyright office),13
but rather about the high
number of “options” to consume the creations from. These “options” are in fact vendors that
act as a “middle-man” between the artist and the consumer. The presence of such vendors is
vital – it would be hard to imagine a world where a consumer has to contact artists (or their
agents) separately in order to enjoy their works. But I argue that there are too many vendors
like these in the digital age, an overload which causes a new type of cost (on which I will
elaborate below) and that may even cause a depression that leads to choosing none of them.
Before the digital age, a consumer that would like to buy a song would have had to physically
go to the nearest retail music store, like Tower Records, and purchase an entire album. The
same applies for TV-shows, for instance, as the consumer had to purchase an entire season at
Blockbuster (etc.) even if she wanted to watch one episode only. Today, these stores are
available online: Apple iTunes, Google Play Music and Amazon Prime for songs, TV-shows
and movies; and Apple iBooks Store, Amazon Kindle and Barnes & Noble Nook Store for
digital books. The purchasing options of such media are much more flexible today, with the
ability to purchase one song of an album (or one episode of a TV-show), and the ability to play
these works on different devices.
Whereas in the past, the main reason to choose one retail store over another was its
geographical location, today it is clear that all of these stores are 1-click away and thus this
reasoning is irrelevant in the digital age. If this is the case, what could be the reason for
choosing one internet store over another? One might think that the competitive market
conditions will lead to differences in prices between these services14
, but this statement is

13
17 U.S.C. § 411 (1976)
14
Especially due to the fact that comparing prices is easy, as everything is visible and easily
accessible online. Therefore, online stores don’t have to hire “spies” that would physically go and
check the prices of other stores, like they should have done before the digital age.

10
surprisingly wrong. As Professor Sprigman of NYU mentioned in the article “The 99¢
Question”, most online stores follow a united 99¢ price for songs and other identical amounts
for TV-shows and movies.15
Sprigman suggested that several behavioral analysis explanations to this phenomena:16
First is
fairness. Consumers would not like to pay a price that they perceive as unfair, even if it was
determined by economic principles like supply and demand. And one of the major ways to
judge the fairness level of a price is comparing it to the other prices of the industry. Therefore,
it is very possible that Apple, Amazon and Google prefer to set the same prices so that
consumers will perceive them as fair. Second, variable pricing between services may be
confusing to consumers, especially as these kinds of purchases sum up to very few dollars.
Thus, adjusting the price differently will end up in prices that are hard to remember (such as
$1.13 or $0.94), which will impose a “menu and monitoring cost” (in Sprigman’s words). This
explanation is joined to the behavioral economic analysis that argues that a $0.99 price is
appealing, and will always look much less than $1.00. In conclusion, mostly for behavioral
reasons, the prices levels are the same between online stores of copyrighted works.
I argue therefore that there is no substantial and practical reason to choose one store over
another, and this abundant selection of online stores is bad for consumers. Namely, as I will
explain in the following paragraph, having so many stores to choose from may lead to choosing
none of them and to downloading the content illegally instead.
Despite the common belief, many behavioral studies from the recent years show that at some
point – having too much choice is harmful.17
Having both iTunes and Amazon, iBooks and

15
Christopher Sprigman, The 99¢ Question, 5 J. Telecomm. & High Tech. L. 87, 97 (2006)
16
Christopher Sprigman, The 99¢ Question, 5 J. Telecomm. & High Tech. L. 87, 105 (2006)
17
BARRY SCHWARTZ, THE PARADOX OF CHOICE: WHY MORE IS LESS (Ecco/HarperCollins
Publishers, 2004)

11
Nook Store, without any substantial differences between them – is a recipe for unhappiness.
They cause depression among consumers that have to choose between them, as the more
options you have – the more likely you are to experience regret. As research shows, people
respond much more strongly to losses than gains: Daniel Kahneman and Amos Tversky
conducted an empirical study that have shown the following: zero choice evokes infinite
happiness, but bad feeling escalate as we go from having few choices to many.18
As the number
of choices we face increases, the psychological benefits we derive from having a variety of
options start to level off.
Therefore, I would like to conclude that the market conditions that allowed for so many online
stores for consuming copyrighted content are only harming the industry. Having few options
to consume the content from is good, but having too many (like the current status) may
probably cause depression. When consumers are depressed, they might tend to choose the
illegal downloads option, which will benefit to their wallet and will spare their pain of choosing
one of the services.
Even slight differences in price could eliminate this issue of too much choice. Research shows
that people tend to be extremeness averse,19
thus they will prefer to pay for the second most
expensive service. Having the same prices for all of them makes it impossible to apply this
reasoning on the current market of media consumption.
Naturally, no one has a reason to check out every option, especially due to their similarities as
described above. Making a rational choice to prefer one service over another is very hard and
unreasonable. Some people may be considered as “maximizers” – people who tend to check

18
Daniel Kahneman and Amos Tversky, Choices, Values, and Frames, 39 AMERICAN PSYCHOLOGIST
341 (1984)
19
Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175, 1183 (1997)

12
every option thoroughly to reach the best decision possible. Maximizers will not settle for the
second-best. From our point of view, they will have to check each and every online service for
media consumption, weigh the pros and cons of them, and only then choose one of the services.
In my opinion, maximizers will suffer the most from the multiple choice, as making a decision
becomes increasingly daunting for them as the number of choices rises. But this analysis also
raises a new type of cost: “opportunity costs”.20
These costs focus on the loss of the
opportunities that a different online service would have afforded, which may cause depression
as well. As I see it, both maximizers and regular consumers experience this cost due to the
large variety of services.
At this point of the paper, one may ask: “Why not using several services in parallel, if the
differences between them are negligible anyway?”. This proposal means that consumer will
choose many (if not all), instead of having to choose one main vendor to consume copyrighted
content from. The answer is that each online stores provide its entire exclusive ecosystem, a
world of content and additional accessories. For example, a person that chooses to use the
iTunes store will find that it’s much easier to listen to the songs she bought on iPod, iPhone,
etc. If she would like to purchase another song from the Google Play store, not only will she
now have 2 separate music libraries, but also she will encounter technical difficulties in
enjoying all of her songs on the same device (although eventually it is possible to do so).
Choosing one of the services may be considered as a “sunk cost”, and moving between
ecosystems (“stores”) will multiply this cost.
This could be an interesting appearance of a “lock-in effect”, in a way that switching costs
between services may cause a consumer to stay with the same vendor. In addition to these

20
Barry Schwartz, Maximizing versus Satisficing: Happiness Is a Matter of Choice, 83 JOURNAL OF
PERSONALITY AND SOCIAL PSYCHOLOGY, 1178 (2002).

13
costs, I would also like to suggest a behavioral phenomenon that applies as well: The bounded
willpower, that may cause consumers to over-evaluate the switching costs, make the problem
worse. Consumers are risk-averse and are very sensitive to negative experiences,21
and thus
they might be bounded to the same online store just because of these fears of switching.
To emphasize the amount of depression the above scenario may cause, I would like to imagine
a consumer that really loves TV-shows. Naturally, she would like to watch the most popular
TV shows released in 2015. According to the online database “IMDB”, the top 2 TV-shows
are “Jessica Jones” and “The Man in the High Castle”. Unfortunately for our consumer,
“Jessica Jones” is available exclusively on the online service “Netflix”, and “The Man in the
High Castle” is available exclusively on another online service, “Amazon Prime”. Although
most content between the online services is overlapping, there are some exclusives in each of
them (a representation of the “eco-system” I described above). Using them both is technically
difficult (and also a waste of money), but using only one of them means our consumer will not
be able to legally enjoy both of the most rated shows – and may lead to illegal consumption of
them.
To conclude, the digital age introduced new and easier ways to consume media. In this chapter,
I argued that there are in fact too many ways to consume such media. This overload of services
is adding many costs to the experience, and may also cause depression and other negative
behavioral outcomes. Perhaps a solution to this problem will be breaking the price similarities
between the services, which will also benefit the consumers as prices will go down (and
probably the cheapest service will become the most popular one and will narrow the selection
of services).

21
DANIEL GILBERT, STUMBLING ON HAPPINESS 173-174 (2006).

14
Chapter 3: Licensing Agreements Are Too Complex
What makes copyright unique in the digital age is that the definition of “buying” a copyrighted
work is now changed dramatically, compared to its meaning in the past. The first sale rule
under Section 10922
means that once a copyright owner sells another a legal copy of a book or
something, they no longer control the distribution rights of that particular copy of the work.
The buyer, as the owner of a lawfully made copy, may sell, rent, donate it, or do any other
action they desire. This rule, for example, is responsible for the legitimacy of public libraries.
However, in the digital age, the first sale rule applies only to the distribution right and not the
reproduction right. And since Since selling a digital music collection would require making a
copy of those files, it is forbidden. It means that as the law stands now, there is no legal
secondary market for digital works of any type. Therefore, “buying” content online is merely
entering into a licensing agreement. It is not really buying a copy of the work, but rather
agreeing to the terms of use and complying to them.
In this chapter I argue that these licensing agreements are too complex for the standard
consumer. I claim that they cause confusion, and may lead consumers to prefer illegal
downloads due to their complexity. Although not empirically proven, I also think that most
people don’t even try to read licensing agreements (or the “Terms and Conditions”), and by
clicking “Agree & Accept” they expose themselves to copyright infringement liabilities they
did not intend for (as they didn’t know their actions with the works are forbidden).
Brooklyn Law School’s student ID consists of 7 digits, as well as phone numbers in Israel.
Longer numbers are just not optimized to the ability of the human brain to “digest” data and
remember it. The psychological explanation that stands behind it relies on the fact that

22
17 U.S.C. § 411 (1976) (Limitations on exclusive rights)

15
investing our brain-resources on so much data will make our memory to collapse at some point,
and will also cause loss of concentration.23
As of November 2015, the Apple iTunes Store “terms and conditions” agreement is 51 pages
long, written in a highly complex legal language. In my opinion, and based on the analysis in
recent chapters of this paper – a consumer that runs into this agreement will be frightened,
depressed, and frustrated, and might prefer to download the same content illegally. This
information overload24
is unfair and as I see it – one of the main reasons for piracy. People
are not able to concentrate and read the entire agreement (and surely not to remember what
they agreed for). Together with the conclusion of the previous chapter, it seems as if there is
too much choice in choosing a service, and then there is too much data and complexity in trying
to use one.
A solution for this problem might be harder to find. As described in the beginning of this
chapter, one cannot simply “buy” a work online, as the digital age enforces the absent of a
secondary market for digital works of any type. Therefore, it is safe to assume that licensing
agreements are here to stay. Perhaps a solution may derive from changing the nature of the
agreements themselves: the text in the agreement can be written in a simple language, and can
be labeled, colored and flagged, in a way that will be easier for the consumer to read.25

23
George A. Miller, The Magical Number Seven, 63 PSYCHOL. REV. 81 (1956)
24
A research that deals with the overload of information in credit cards contracts demonstrates the
severe behavioral issue with them: Jeffery Davis, Protecting Consumers from Overdisclosure and
Gobbledygook: An Empirical Look at the Simplification of Consumer Credit Contracts, 63 VA. L.
REV. 841 (1977)
25
Omri Ben Shahar, The Myth of The Opportunity to Read’in Contract Law, 5 EUR. REV. CONTRACT
L. 1 (2009)

16
Chapter 5: Legally Paying for the Use of Copyrighted Works Is Too Expensive
Lastly, I would like to suggest a behavioral explanation to the high prices of using copyrighted
works, from the creators’ point of view. The issue of whether people tend to think that prices
of arts are too high or not is an important and substantial question, that requires conducting an
empirical survey in public and that deserves its own article. For the sake of this chapter, I will
assume that prices are indeed considered to be too high, and I will examine the reasons for this
costliness from a rational point of view.
In short, creators of copyrighted content (as well as any other person) tend to be loss-averse,26
which defects their rational decision making, and thus they over-rate the value of their works.
This is called the “endowment effect” – because a person owns something, and merely because
of the ownership, they assign it a greater value than the real market value of that thing. It is
safe to assume that if they created that something (and not only owned it) – the endowment
effect is much greater. Due to this irrational behavior, creators may tend to assign a high price
for their work, regardless of its true market value.
As opposed to other fields of trade, copyright is distinguished as every creation is vastly
different from another. For example, if a woodworker would sell a chair for an unreasonable
price (due to the endowment effect), a smart consumer will simply go to another woodworker
and the market conditions will work things out on their own. However, it is hard to imagine
that a consumer that would like to buy “Harry Potter” will purchase “Narnia” instead as J.K
Rolling decided to put a higher price on her works because of the endowment effect. Namely,
each work in the copyright law is unique, which makes the irrational failure even more harmful.

26
Cass R. Sunstein, Behavioral Analysis of Law, 64 U. CHI. L. REV. 1175, 1180 (1997)

17
People probably consume a vast amount of copyrighted content on a daily basis. With the
existence of the endowment effect that leads to high prices, it is inevitable that piracy will arise.
Conclusion
Throughout this paper I provided possible behavioral justifications for piracy. First, I argued
that the current copyright law fails to deter from infringement, and that educating the public
for the positive aspects of respecting one’s copyright is a better option. Second, after examining
behavioral explanations for the similarity of prices in online stores, I claimed that there are too
many online stores to choose from, which cause depression and additional costs. After that I
argued that licensing agreements are too complex and intimidating for the standard consumer,
and that legally paying for copyrighted works is too expensive.
All of these claims, individually and together as a whole, can be considered as the reason for
the rise of piracy. In each chapter I tried to purpose a solution for the behavioral problem I
presented, a way to fix the law – but sometimes a complete makeover is required. Another
solution, for all of the argued problems, is canceling copyrights law and allowing for social
norms to emerge instead. These norms, along with proper education, may help to reward
creators even without strict regulation.27
In this utopian scenario, the public will be educated by the “Golden Rule”: Take not from others
to such an extent and in such a manner that you would be resentful if they so took from you,28
and eventually the irrational pirate, will become, the irrationally paying consumer.

27
As crazy as it sounds, such norms were developed in the world of stand-up comedies, and it seems
to be working well: Dotan Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The
Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 VA. L.
REV. 1789 (2008)
28
In the Supreme Court case Harper & Row v The Nation, the majority opinion coined this golden
rule as well. Harper & Row v. Nation Enterprises, 471 U.S. 539, 570 (1985).

The Irrational Pirate - Tom Urbach

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