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.

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.”

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.”

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.

“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”!