File-sharing & Social Capital
In the intellectual property / cyberlaw niche of the legal academy, I think it is fair to say that the litigation over Napster and Grokster has resulted in so much spilled ink that it is hard to keep up with the commentary. Indeed, while these are cases in my bailiwick, I never finished reading through the panoply of Grokster amicus briefs, much less all the law review articles on file-sharing.
What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren’t as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of economic incentives for greater production and distribution. In other words, through our legal policy lens, the song becomes a widget and the accepted policy goal becomes the production and distribution of more and more widgets. Thus, to the extent a complex legal doctrine permits it to come to the surface, the relevant policy question for file-sharing is whether it will provide the public with more or fewer song-widgets. It’s a bit disheartening that our intellectual property policy equates songs like American Pie, Hey Ya, and Toxic with three fungible barrels of crude oil–but perhaps judges, as Justice Holmes once opined, shouldn’t really be in the business of making artistic policy judgments.
As a result, though, what often gets left out of the myriad legal ponderings on file-sharing is the social dimension of the activity. This isn’t true across the board by any means — Rosemary Coombe, Mike Madison, and recent guest-blogger Joe Liu, for example, have written law review articles with a clear interest in how popular content “consumption” is actually something much more interesting than the term suggests. But because the legal doctrine of copyright rests on that reductive incentives story (with a constitutional basis), it likely seems to many legal scholars that there is little reason to pay attention to the cultural dimensions of intellectual property law.
Released by researchers from the Georgia Institute of Technology and PARC, it is a small scale study of social file-sharing practices with regard to iTunes. The researchers note that they’re breaking from the pack a bit by examing digital file-sharing as a community, not a legally charged, activity:
[P]olitical, legal, and ethical considerations — digital rights management laws, in particular — have catalyzed much of the recent changes in music sharing technologies and have led to an almost exclusive research focus on those issues. There is, however, a gap in the research that is available to inform current music sharing technologies – a lack of understanding about users’ actual practices surrounding music sharing…
The report contains plenty of interesting anecdotes about the social nature of file-sharing in one office. For instance: Is it a good thing to share music if you have the technical ability to do so? Might your shared collection tell your co-workers, or your supervisors, something about you that you don’t want them to know? Can you use your file-sharing as an educational opportunity? Do you have any ethical obligations to an anonymous co-worker who is listening to your collection?
What becomes quickly apparent from reading the paper is that a collection of shared music (in this particular social setting) is not just a stack of raw material, but a form of dynamic social capital as well — perhaps even a form of social liability and an impetus for ethical obligations. In short, it’s a fascinating read about exactly what digital file-sharing looks like in one case… even if it ultimately won’t give you much help in understanding the law of the Grokster decision.