File-sharing & Social Capital
posted by Greg Lastowka
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.
That’s all by way of background to why I found this paper, presented at the CHI conference in April of this year, so interesting.
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.
December 1, 2005 at 9:45 am
Posted in: Intellectual Property
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Responses (4)
Ed Felten - December 1, 2005 at 11:11 am
I don’t think you’re stating the policy goals of the widget model quite correctly. The goal of public policy should not be to maximize the number of works produced. If that were the goal, the best policy would be to pay everyone to be a musician or writer.
The proper goal is to maximize the total value that creators provide to society. This means that it is efficient not to produce some works — such as a CD boxed set of my shower singing — because the cost of producing and delivering them exceeds their value to society. It also means that it might sometimes be a good tradeoff to produce fewer works if by doing so we can reduce the cost or increase the availability of those works that are produced.
I don’t think economic analysis of copyright is really in conflict with the sort of sociological understanding you advocate here. If filesharing creates social capital, that’s a benefit that should be taken into account in the economic equation — another way that existing works provide value to society.
Somebody might argue that this is a tradeoff of the sort I mentioned above, i.e., that filesharing reduces the number of works produced by lets society extract more value from the works that still are produced, and that society as a whole is better off. I’m not saying the evidence to support that argument is in place. But I am asserting that arguments of that form can be made perfectly well in the economic framework.
greg - December 1, 2005 at 11:37 am
Hi Ed! Nice to see you reading!
I think I’m stating copyright policy goals correctly from a *descriptive* perspective. Copyright actually *does* pay everyone to be a musician and a writer, per the 1976 Act, by granting the IP right at the moment of fixation in a tangible medium. Your shower singing, if you record it, is another widget that copyright gleefully adds to the production tally. Copyright policy has generally allowed the market the freedom to decide whether your shower singing or Britney Spears’ “Toxic” should be in the libraries of the general public — the law doesn’t express an opinion on whether packing, shipping, and distributing Felten’s Shower Songs would be a waste of time.
If you want to talk about what IP policy *should* do, point taken. I think what you’re driving at is that there’s an important distinction to be made between the economics of maixmum production and the economics of maximum use — and saying that copyright should focus on production as a proxy for use. I agree. You’re also saying that too many incentives to widget-making might be undesirable if they undermine the ultimate desired outcome, i.e., getting the widgets into the hands of consumers. Yes, that’s right too — and there are instances in copyright law where you arguably see the law supporting that kind of economic perspective (e.g. first sale doctrine, which shifts the incentive from production to distribution).
But we’re still in the land of songs as widgets, which is familiar turf for the Grokster debates. What I like about this ACM paper, and the reason I wanted to blog it in contrast to the Grokster debates, is that the songs here are clearly no longer fungible. File-sharing, and particular songs, are a means by which the owners construct their identities, understand the identities of others, explore and educate themselves, form social bonds, and acquire community obligations. It’s in this realm that talking about songs as widgets seems overly reductive.
John Armstrong - December 1, 2005 at 11:48 am
I’ve long thought that the distinction between information and (for example) oil is at the heart of this whole debate, and is the farthest from most people’s minds. Information behaves completely differently than its medium, and we’re entering the age when information moves separately from any particular medium. There is precious little pure philosophy on the subject, and vanishingly little legal or economic philosophy, let alone coherent policy.
I don’t see this improving anytime soon. Publicly the debate has become a shouting match between large men with beards (Metallica and Richard M. Stallman). Even in the legal academy, I haven’t seen nearly enough real dialogue — the law school here (New Haven) had a “multidisciplinary seminar” a couple years ago in which anyone from a math/computer science background who actually knew how computers worked was pushed aside for LitCrit ramblings about “The Cyborg”. As long as law and economics listen more to hand-waving and theory (or “theory”), we’ll be stuck with songs as widgets.
eejits - March 4, 2009 at 7:48 am
Publicly the debate has become a shouting match between large men with beards (Metallica and Richard M. Stallman). Even in the legal academy, I haven’t seen nearly enough real dialogue
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