Incentivizing Bad Behavior Through Copyright

This Essay comes in response to the comments of Professors Margaret Chon, Cathay Smith, and David Taylor as part of the Texas A&M Journal of Property Law’s Symposium featuring a discussion on my book Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind. In this Essay, I argue that the law should refrain from copyrighting pornographic content. This conclusion is based on a factual assumption and a moral principle. The factual assumption is that pornographic content is harmful to society.

The moral principle is that applying law to incentivize harmful conduct undermines the effectiveness of law. My argument, then, is that employing copyright law to incentivize the harmful outcomes that follow from creating and consuming pornographic content—even if to accomplish a social policy goal that seems praiseworthy—will undermine the effectiveness of law. To do so opens the door to using any and all laws in a way that is clearly immoral for a seemingly good purpose. In short, the end does not justify the means.