Portrait of an Undeterred Copyright Pirate

Posted on January 29, 2007 by Dr. Danny Friedmann

Geoffrey York wrote for the Globe & Mail a human interest story about a Chinese copyright pirate, who was sentenced twice to prison and spent a total of six years in jail, only to start all over again. Read York’s article here.

Deterrent [1] is a relative term; a remedy might be a deterrent for some individuals, while neutral to others, assuming a correlation with their circumstances and perception [2]. Besides, having severe and mandatory imprisonment sentences and monetary fines available on the books is not sufficient to provide a deterrent for criminal behaviour [3]. If a potential infringer’s perception is that chances are slim he will be apprehended and punished, even if the punishment severity is high, the deterrence level is most probably low. To date this is probably the case, because one of the prosecutorial ways is hardly used [4]. Research shows that punishment certainty is far more consistently found to deter crime than punishment severity [5]. This is especially relevant in China, because even when prison sentences and fees are imposed, they often are not served or paid. The delay between the criminal act and the punishment will determine the degree of imminence [6], assuming that the smaller the interval between the time of the crime and the time when the criminal has to serve his sentence and pay his fine, the more effective the special deterrent effect will be [7].

Notes
[1] A distinction must be made between general deterrence and special deterrence: “General deterrence: dissuading potential offenders from offending at all by way of the punishment administered for a particular offence”, Barbara Hudson, Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory, Buckingham, England: Open University Press, 1996 (mentioned here:
http://www.sagepub.com/upm-data/5144_Banks_II_Proof_Chapter_5.pdf#search=%22Gertrude%20Ezorsky%20special%20general%20deterrence%22) and “Special deterrence refers to an intervention that prevents an offender from committing crimes in the future,” Albert R Roberts, Critical Issues in Crime and Justice, Sage Publications Inc, Jan 1, 2003, pg. 313.
[2] “[..] deterrence theory neglects a growing list of personal traits that appear to predict offending [..]”, Daniel Nagin, Integrating Celerity, Impulsivity, and Extralegal Sanctions Threats into a Model of General Deterrence: Theory and Evidence, January 2000, pg. 5, available at: http://www.ssc.wisc.edu/econ/Durlauf/networkweb1/London/Criminology1-15-01.pdf.
[3] Besides deterrence it should be noted that by factually imprisoning and fining criminals they may get incapacitated to continue their infringements.
[4] The administrative authorities scarcely refer criminal cases to the criminal prosecution, as aforementioned.
[5]“Two prominent findings from this literature are that punishment certainty is far more consistently found to deter crime than punishment severity, [..]”,Daniel S. Nagin, Integrating Celerity, Impulsivity and Extra-Legal Sanction Threats into a Model of General Deterrence: Theory and Evidence, January 15, 2000, pg. 3, available at: http://www.ssc.wisc.edu/econ/Durlauf/networkweb1/London/Criminology1-15-01.pdf#search=%22severity%2C%20certainty%20celerity%22.
[6] “Going back to Beccaria, punishment imminence (“celerity”) has been accorded co-equal status with certainty and severity in theory, yet empirical tests of the celerity effect are scant.”
Daniel S. Nagin, Integrating Celerity, Impulsivity and Extra-Legal Sanction Threats into a Model of General Deterrence: Theory and Evidence, January 15, 2000, pg. 3, available at:
http://www.ssc.wisc.edu/econ/Durlauf/networkweb1/London/Criminology1-15-01.pdf#search=%22severity%2C%20certainty%20celerity%22.
[7] There is a Pavlovian idea behind this theory, that the criminal is conditioned better if he is punished as soon as possible after the crime. Daniel Nagin has developed a discounting model for punishments to make imminence relevant in the deterrence theory. Integrating Celerity, Impulsivity and Extra-Legal Sanction Threats into a Model of General Deterrence: Theory and Evidence, January 15, 2000, pg. 3, available at:
http://www.ssc.wisc.edu/econ/Durlauf/networkweb1/London/Criminology1-15-01.pdf#search=%22severity%2C%20certainty%20celerity%22.

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