The Young and the Lawless
posted by Frank Pasquale
I got some interesting comments a week or so on a post called “Is Anyone Against Open Access?” (on the recent movement to make legal scholarship more accessible). I wanted to respond to one point from William McGeveran, who made a point against a status quo of sotto voce infringement:
Even if users of law review content can get away with ignoring a copyright because the practical risk of suit is low, I don’t think that’s enough. After all, we are supposed to be committed to both (1) the law and (2) intellectual openness and interchange. Accepting quiet infringement seems to run against both principles.
McGeveran’s point reminded me of an op-ed column complaining about the recent ban on internet gambling:
The temptation for good citizens to ignore a stupid law is encouraged when it is unenforceable. In this, the attempt to ban Internet gambling is exemplary. . . . And so the federal government once again has acted in a way that will fail to achieve its objective while alienating large numbers of citizens who see themselves as having done nothing wrong. . . . Reflexive loyalty to the rule of law is an indispensable cultural asset. The more honest citizens who take for granted that they are breaking the law, the more their loyalty to the law, and to the government that creates it, is eroded.
And indeed, some recent studies have charted the rise of the “middle class criminal,” arguing that “because of corporate scandals such as the Enron affair or smaller, day-to-day experiences of feeling ripped off, people have developed a syndrome of ‘market anomie’ characterised by distrust, insecurity and cynicism towards laws and regulations.” The “stop snitching” movement may be one more manifestation of the trend.
Still, I think one can distinguish “low enforcement of copyright” from other, more troubling trends of lawbreaking. For one thing, it’s often not really clear if anyone is being harmed by a given act of copying. The added exposure from the unauthorized use may ultimately redound to the benefit of the copyrightholder. Moreover, some new IP laws seem so complex, and so alien to our ordinary experience of culture, that users appear to think of themselves as “civilly disobedient.” Indeed, what looks to be a fascinating panel at AALS this year will focus on just that question. Finally, though they might seem like lawbreakers at first, those who aim to change our understanding of the law via novel and innovative uses of IP may end up looking like visionaries.
So even the superhero Attorney Man might be confounded by the difficult legal and moral issues involved here.
October 23, 2006 at 9:43 am
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Responses (6)
Bruce Boyden - October 23, 2006 at 12:26 pm
I’m not sure it’s that distinguishable. It’s not clear for a lot of laws if anyone’s being harmed by any given act. Who’s harmed if I go 65 in a 55 mph zone? Who’s harmed if I walk through someone’s yard without permission?
“The added exposure from the unauthorized use may ultimately redound to the benefit of the copyrightholder.” And maybe there’s a net social benefit if I drive 65 mph. So?
Moreover, some new IP laws seem so complex, and so alien to our ordinary experience of culture, that users appear to think of themselves as “civilly disobedient.” Honest officer, I was just being “civilly disobedient”!
Frank - October 23, 2006 at 12:54 pm
Regarding the social utility point–yes, that’s a good point in favor of rule utilitarianism generally!
Regarding civil disobedience: Well, I think the speeder has less of a claim. Benkler, Netanel, Pessach and many others have (in my view) linked the “free culture” movement to extant critiques of the media (ala McChesney, Bagdikian, Christians, Mermin, etc.). It seems to me that a vibrant “remix culture” is a good that conduces both to individual creativity and a better culture overall.
Bruce Boyden - October 23, 2006 at 1:53 pm
Suppose I claim that a vibrant ability to drive 65 in 55 mph zones is conducive to individual liberty and a better culture overall. Maybe I can even cite academic critiques of speed limits that say that. It seems like you could spell out a similar story for any widespread instance of lawbreaking (e.g., tax evasion). I think the difference is, you like those other laws, but copyright, not so much. Therefore, it seems less harmful.
Frank - October 23, 2006 at 3:00 pm
But there’s no expressive component to driving. And I think that, even if there were, we’d go to the social harms/benefits side, and the harms would be much less clear on the IP side than on the “real world” side. (For instance, Fred Yen’s analysis of secondary liability of gun makers and P2P software writers suggests that a lot more harm is caused by the former than the latter.)
By the way, though the expressive dimensions of driving fast don’t exhaust the issue, I really don’t see it as part of a vibrant culture. It reminds me of the claim that gun-shooting was expressive, sidestepped in the case of GOAL v. Swift, 284 F.3d 198, 210 (2002):
“First Amendment challenges to proscribed conduct usually require a two-step inquiry; first, assessing whether the proscribed conduct is sufficiently communicative to count as expression protected by the First Amendment, and secondly, whether the challenged law is content-neutral or content-based. However, a court may sometimes bracket the initial analysis, assume arguendo that the conduct is expressive enough to come within the ambit of First Amendment protection, and then complete the second inquiry.”
Admittedly, the “second inquiry” here would permit both the copyright lockdown, and the speed limit, since both would likely be considered “content neutral.”
Bruce Boyden - October 23, 2006 at 3:45 pm
Well, there’s no driving component to expression, either. Expression is irrelevant. The question is whether a principled distinction can be drawn between widespread violations of law that are troubling, and those that are not troubling, that doesn’t depend entirely on whether you think the law in question is just. (I understood that to be the point of the end of your initial post.) I don’t think there is such a distinction.
You could argue that my speed limit example is distinguishable because it increases the chance of physical harms, which are worse than mere monetary or intangible harms. But I’m not sure that by itself is a good criterion; one can imagine non-troubling but widespread violations of a law that reduces the risk of physical harm. E.g., a law requiring sidewalks to be shovelled within the first 5 minutes of a snowstorm. Or a speed limit of 5 mph on an ordinary divided highway. So that doesn’t work.
You could argue that not enough people violate speeding laws, but I don’t think that would work as a factual matter. You could argue that speeding laws are fairly simple, and disobediance of complex laws is less troubling, but my “shovel within 5 minutes” law is simple and untroubling; whereas tax laws are extremely complex, but widespread evasion seems troubling.
I don’t see any way of distinguishing troubling from untroubling non-compliance, other than whether you think the law deserves to be followed. Which is fine, if that’s your argument, but you can’t get any additional mileage from other features of copyright law that somehow make noncompliance “less problematic.”
Frank - October 23, 2006 at 3:55 pm
But some speedy driving really does kill people, whereas it’s hard to see how any copyright infringement does that.
So perhaps the crimes involving money mentioned above are only different from copyright infringement as a matter of degree (though none of them seem to have the expressive implications I think so central to an understanding of copyright as a regulator of culture.)
But violations regarding guns or speeding really do involve risk of death–even if, as in your 5-minute shoveling example, that risk may be minuscule. So that really is a difference in kind.
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