This brief solicited response addresses Prof. Irina Manta's article "The High Cost of Low Sanctions," which appeared in 66 Florida Law Review 157 (2014). Prof. Manta argued argues that to the extent the substantive law is unjust, low sanctions, in the long run, potentially create more problems and are more likely to perpetuate injustice than high sanctions would. She demonstrates that the general theory is applicable to the world of copyright, and then explains why as of late, the public has become more aware of and more resistant to the imposition of additional sanctions. In Professor Manta's view, the reason for this is the ubiquity of infringement.
In response, while generally agreeing with Professor Manta's observations, I critique her work for not giving enough weight to alternative explanation — that the rise of corporate giants like Google, YouTube, Wikipedia, and other businesses that collect and disseminate information has provided political counterweight to to the Disneys, Viacoms, and RIAAs of the world. I compare this new and more balanced representation of copyright views to what has been happening in the world of patents where corporate titans in various industries present arguments for both stronger and weaker patent law, with the final bills ending up somewhere in between. Ultimately, I suggest that perhaps, the high cost is imposed not by low sanctions, but, at least in part, by absence of the organized and well funded opposition that would be affected by these sanctions.
Googling Down the Costs of Low Sanctions, 66 Fla. L. Rev. Forum 25 (2015)