This doctoral project explores relationships, interests and legitimacy in the culture of criminal lawmaking. The thesis holds that criminal copyright law in the United States gives more weight to private actors and public interests versus a fair balancing of public and private interests in German criminal copyright policy, and while each approach pertains to the political and cultural ideologies of the countries, the legitimacy of criminal copyright policy in both countries is questioned.

OVER­VIEW: This doc­tor­al pro­ject ex­plores re­la­tion­ships, in­terests and le­git­im­acy in the cul­ture of crim­in­al law­mak­ing. The pro­ject seeks to show that crim­in­al copy­right law in the United States is largely polit­ic­al and gives more weight to private act­ors and pub­lic in­terests versus a fair bal­an­cing of pub­lic and private in­terests in Ger­man crim­in­al copy­right policy, and while each ap­proach per­tains to the polit­ic­al and cul­tur­al ideo­lo­gies of the coun­tries, the le­git­im­acy of crim­in­al copy­right policy is heav­ily ques­tioned in both coun­tries. The main ques­tion is how do in­terests le­git­im­ate crim­in­al pun­ish­ment for copy­right in­fringe­ment? The re­search uses the le­gis­lat­ive re­cords, pro­fes­sion­al in­ter­views and pub­lic dis­course to identi­fy the ma­jor in­terests in crim­in­al copy­right policy in both Ger­many and the United States. The goal of this re­search is to find out how in­terests are ne­go­ti­ated in the­ory and prac­tice when ap­ply­ing and de­vel­op­ing crim­in­al law in or­der to bet­ter un­der­stand the true aims be­hind crim­in­al le­gis­la­tion in two de­veloped na­tions.

THES­IS STATE­MENT: The Unites States’ ap­plic­a­tion of crim­in­al law to copy­right policy re­flects an im­bal­ance of private and pub­lic in­terests in the cul­ture of Amer­ic­an crim­in­al law­mak­ing versus a fairer bal­an­cing of pub­lic and private in­terests in Ger­man crim­in­al policy that are con­nec­ted to the polit­ic­al and cul­tur­al ideo­lo­gies of the coun­try.

MAIN QUES­TION: How do in­terests le­git­im­ate crim­in­al pun­ish­ment for copy­right in­fringe­ment?

RE­LATED RE­SEARCH QUES­TIONS: 1.) What are the polit­ics (or cul­tures) of crim­in­al law­mak­ing (act­ors, val­ues, and in­sti­tu­tions) in Ger­many and the United States? 2.) Where does lob­by­ing in­ter­vene (in­tro­du­cing or in­creas­ing pun­ish­ment) in the pro­cess of crim­in­al law­mak­ing? 3.) How do the aims of crim­in­al copy­right pun­ish­ment re­flect the cul­ture of crim­in­al law­mak­ing in Ger­many and the United States? 4.) How is the concept of le­git­im­acy re­lated to the cre­ation of crim­in­al copy­right pun­ish­ment (in the­ory and prac­tice)? Look­ing at “le­git­im­acy” from the stand­ard of pro­ced­ur­al fair­ness. 5.) What is the im­pact of re­la­tion­ships between gov­ern­ment and private act­ors on meet­ing the aims of crim­in­al copy­right law?

6.) How does private in­terests con­trib­ute to the in­ter­na­tion­al­iz­ing of Amer­ic­an pen­al policy? (In Ger­many, this may be more the case with pat­ent law)

GOAL OF RESEARCH: To learn how interests are negotiated in the creation and development of criminal law in Germany and the United States and how these negotiations relate to the legitimacy of the criminal law.