Here is a link to a very interesting paper on plea bargains and prisoner’s dilemmas by Oren Bar-Gill of NYU School of Law and Omri Ben-Shahar of the University of Chicago Law School. The article outlines how and why plea bargains work and argues against the view that plea bargains improve the well-being of defendants. They conclude (among other things) while ”[f]or the individual defendant a plea bargain represents increased choice [...] the availability of plea bargains might well be the factor that makes the trial option viable in the first place. Without plea bargains, many defendants would not face the risk of trial—they might not be charged at all. Defendants are charged, and are threatened with trials, only because the prosecutor expects to plea; they would not have been charged otherwise. [...] The prosecutor is able to extract harsh plea bargains from many defendants, we suggested, because defendants cannot coordinate their resistance to the prosecutor’s strategy. The credibility of the prosecutor’s threat is based on the defendants’ collective action problem [and] while plea bargaining benefits the individual defendant, it is not at all clear that it benefits defendants as a group.” Thus, as Friedman observed in Law’s Order, plea bargaining is a good example of a prisoner’s dilemma, and it may be used by prosecutors to produce a positive result for society (i.e. convicting more criminals).
Another aspect of the paper that I found to be particularly interesting was the discussion of a parallel prisoner’s dilemma that exists in some civil cases. According to Bar-Gill and Ben-Shahar, ”[t]he collective action problem of the plea bargaining defendants in criminal law has a similar strategic structure to another common litigation scenario: the one-against-many litigation phenomenon in civil cases [...] [or] situations in which one party has independent and non-joinable disputes with a multitude of counterparties, each operating separately, each potentially reaching a different trial outcome, and each subject to separate settlement bargaining.” They observe that “like the prosecutor in criminal law, the civil party who faces many opponents cannot credibly threaten to take all of them, or even a substantial sub set of them, to trial. Even the mighty insurance companies (as defendants) or the music industry who owns infringed copyrighted materials (as a plaintiff) cannot litigate more than a small fraction of the disputes, and any threat to pursue more cases through litigation would be recognized as a bluff. A party in this situation can only hope to vindicate its legal position through settlements.”
The example used by Bar-Gill and Ben-Shahar is the RIAA (Recording Industry Association of America). They maintain that “[t]he music industry’s recent strategy of filing infringements suits against file sharing users illustrates this approach. Even the mighty RIAA cannot afford to sue all infringers—there are many millions of them. Absent a credible threat to sue, the RIAA seemed to be helpless in deterring copyright infringements. It then turned to a strategy of threatening to sue (and in fact filing complaints) against relatively small subsets of infringers, in separate waves. Recognizing the credibility of the RIAA’s threat to pursue these less numerous claims all the way to judgment, many defendants surrendered and settled. The fear of more waves of suits to come (and in fact coming) is now significantly more substantial, serving the interest of the RIAA in deterring infringements. The RIAA’s strategy is acknowledged by users and infringers, as well as persons supporting the file-sharing movement, to be intimidating. What makes it so intimidating is that those who are sued do not have an interest in mounting any meaningful defense and prefer to surrender to any settlement demanded by the RIAA. Like the criminal defendant, if you are picked to be tried, you might as well settle and avoid much greater risk. And like criminal defendants as a “class,” if only the copyright defendants were able to stonewall—it they could collectively commit to litigate their defenses all the way through trial—the RIAA’s litigation strategy would fail. True, those few defendants who stand at the frontline bear a greater cost. But by depleting the RIAA’s litigation resources, they effectively shield the remaining infringers from suit. Ex ante, infringers are better off if a few thousand of them incur a greater cost whereas the remaining millions are unscathed. Copyright defendants, however, find it difficult to come together and stonewall as a group. Thus, the plaintiff’s ‘divide and conquer’ strategy can succeed, manipulating the defendants’ collective action problem. It is this problem that leads some commentators to propose a mechanism of ‘class defense,’ whereby defendants can coordinate to form a uniform front.”
The RIAA is therefore able to create a prisoner’s dilemma among the copyright infringement defendants, and as long as the collective action problem remains, the strategy will produce results. But is this the best way to solve the problem? Or is there even a viable solution? It would seem that the RIAA’s litigation resources are being used more efficiently in this manner than if they were to attempt the impossible and seek out and prosecute every individual who infringed copyright laws. But how much of a difference does this strategy really make? Is this a case in which the cost of allocating additional resources to prosecute offenders is greater than the cost to society of those infringing upon copyrights? Finally, do copyright infringers really need the additional protection of “class defense”?
