katerina
March 9th, 2004, 11:46 AM
[COLOR=Black][FONT=Comic Sans MS]
The following is from LawMeme's recent features regarding copynorms (Copynorms and Nesson's Koan) at http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1240
I think it is interesting, what do you say? :fire
Copynorms and Nesson's Koan
Copynorms are the informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
Introduction
Although the RIAA's litigation offensive is in full swing, there are grave doubts about its effectiveness. On the one hand, the RIAA simply cannot bring enough lawsuits to create a real deterrent effect. First, the number of suits is so small that the actual risk of becoming a defendant times the cost of settlement equals a miniscule amount. Second, the perception among users of P2P programs is that one can avoid any risk of suit by keeping the number of files shared on any one service below a threshold (usually thought to be 1000 files). On the other hand, there is no evidence that the RIAA is changing copynorms. My gut tells me that the law sometimes is an effective norm generator, and the RIAA's prosecutions do communicate the message that filesharing is unlawful. But there are countervailing considerations:
(1) There is a widespread perception that the RIAA is a bad actor, seeking rents for large music companies at the expense of both artists and fans--the accuracy of this perception is not really relevant, because the perception itself shapes norms.
(2) The indudstry's PR campaign attempts to equate filesharing with theft, but folks instinctively understand that file sharing of a nonrivalrous good (the intellectual property) is not the moral equivalent of the physical taking of a rivalrous good (e.g. shoplifting a CD).
(3) Before Napster and other P2P programs, there was a well-established social norm that permitted copying from albums or CD's to make compilation tapes. This norm was reflected in the provisions of the Audio Home Recording Act which immunized the noncommercial copying of analog audio recordings.
(4) The litigation offensive may even create a backlash, as the RIAA goes after single moms and misidentifies sympathetic defendants. This backlash is reinforced by and in turn reinforces the perception that the RIAA is a bad actor.
(5) And of course, there is the obvious point that self-interest favors the copynorm that permits filesharing and disfavors the copynorm that would create social sanctions for use of P2P.
So the question arises: Is there any way out for the RIAA?
Ernest Miller’s Astute Observation
I blogged last week about a post by Ernest Miller on Law Meme, titled Compulsory Licensing - Where Are the Defenders of HTTP?. At the time, I thought it was significant, but as it has had a chance to settle in, I’ve become convinced that Miller's observation reveals something truly important about copynorms. Here is what Miller wrote:
I venture that there seems to be a different set of copynorms for the practice of filesharing via P2P and http. Certainly some defend filesharing via both P2P and http, but others strongly defend P2P with nary a word in favor of http filesharing. Although I have no proof, I suspect that the public's attitude toward filesharing would differ based on the protocol at issue. Would 12-year old Brianna Lahara think it was okay for her to put all her music on a website for the world to copy? Why don't we see people uploading files to their websites more often? Why aren't they more upset when told they can't upload to their website then when they make files available via a filesharing program?
I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can't stay away from that Public/Private distinction, huh? - Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.
Let me repeat one sentence for emphasis:
[T]he difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act.
Why is this important? Miller has put his finger on an ambiguity in copynorms--a crack in the joints of our attitudes about the propriety of copying. But before we explicate this point, let's back up.
Nesson's Koan
Copynorms are not brooding omnipresences in the sky. They emerge from social interaction, not from abstract moral theory. (Not to say the two are unrelated.) And in the case of copying, the reality on the ground is shaped by technology. Of course, it is a commonplace to observe that the connections between Copyright policy and technology. As Charlie Nesson observed with Zen-like clarity:
There was a time that to make a copy, you needed
a monk, and a desk, and months,
and then Sean Fanning hit the scene.
Or to elaborate on Nesson’s koan, consider this roughly chronological and selective list of developments in copying technology:
Copying by hand.
The Printing Press.
The Phonograph Record.
The Mimeograph Machine.
The Audio Tape Recorder.
The Photocopy Machine.
The Cassette Tape Recorder.
FTP.
Ripping Software & the MP3 File.
P2P
Consider the ways in which copying technologies interact with the publicness or privacy of the act of copying. Copying by hand is private—printing presses are public. Pressing a record is public—making a compilation tape is private. Putting a MP3 file up on a website is public—sharing the same file with P2P is private. What matters is perception. That P2P networks are just the World Wide Web writ small is of no consequence to copynorms—if there is a perceived difference. And there is! Copynorms permitted Alice to make a compilation tape for Ben—think High Fidelity, but they did not permit Alice to make a compilation record and press a thousand copies. Another distinction cuts across the public/private distinction. Some technologies are by their nature “commercial” and some are not. Printing presses are commercial—mimeo machines are not. Record-pressing plants are commercial. Cassette tape records are not.
The Ambiguity of Copynorms
And this brings me to another, crucially important point. Copynorms are informal social norms, and therefore, they are ambiguous and underdeterminate in a way that copyright law is not. (Caveat: Copyright law, like all law, is underdeterminate and abmiguous to some degree.) Social norms or customs are rarely sharp edged. They are amorphous. Our copynorms are not well-defined, precisely because they emerge from the interaction of individual attitudes that are ambiguous and variant and because they are not "laid out as rules" but are, instead, complex dispositions to the expression of attitudes.
Nonetheless, we can try to grasp the shape of the ambiguity. Consider the following two by two matrix:
--------------------Characteristics------
-----------------------of copying
-----------------------------------------
-----------|----Public----|----Private---|
-----------_______________________________
-----------|--------------|--------------|
-----------|--------------|--------------|
-----------|--------------|--------------|
Commercial-|---Taboo------|------?-------|
-----------|--------------|--------------|
-----------|--------------|--------------|
-----------_______________________________
-----------|--------------|--------------|
-----------|--------------|--------------|
Non--------|--------------|--------------|
Commercial-|------?-------|--Permitted---|
-----------|--------------|--------------|
-----------|--------------|--------------|
-----------_______________________________
Entertain this tentative hypothesis--at least for durations of this post! Copynorms disfavor public, commercial copying—even when the copying is legal. This fact helps explain the Copyright Term Extension Act, which could be sold to Congress on the theory that it is just wrong for an author’s writings or composer’s music to be copied in mass, for profit, without permission. Copynorms favor private, noncommercial copying, even when it is unlawful. This explains why the Supreme Court’s decision in Sony is understood to permit any private, noncommercial use of the VCR—even though the language of the decision suggests that archival private, noncommercial copying is infringement. Who seriously thinks it is wrong to keep a videotape of your favorite Seinfeld episode or to make a compilation tape for a friend? But when we think about public, noncommercial copying or private, commercial copying, our intuitions about social norms begin to run out. Is it wrong for a friend to compensate you for taping a miniseries that she would otherwise miss? Does it violate a social norm to put an MP3 file up on a highly visible website or to distribute hundreds of compilation tapes for free? I suspect that opinions differ on these questions.
And here is the RIAA’s problem. P2P is currently perceived as noncommercial, private activity. And the individuals who share files on P2P truly are engaged in noncommercial activity—but as to the private part—that is not so clear.
A Modest Proposal
So here is a modest proposal for the RIAA. Go with the flow! Use the norms, don’t fight them. What does that mean in practical terms? When the RIAA sends the message, “copying is theft,” they are fighting the norms. No one believes that copying is the moral equivalent of theft, because everyone thinks that private, noncommercial copying is just fine. Even the RIAA seems to have thought that when they agreed to the provisions of the Audio Home Recording Act that permit noncommercial analog copying. And the fact that copynorms diverge from norms about theft is rooted in the underlying economic reality--consumption of intellectual property is nonrivalrous, whereas consumption of tangible property is rivalrous.
So here is an alternative message that the RIAA could try:
Share with your friends, not with strangers!
In other words, the RIAA could try to get the public to see that P2P programs are the moral equivalent of giving away hundreds of videotapes or compilation tapes. Those activities are not socially acceptable. They may not be socially unacceptable either. Mass giveaways are rarely a social problem, because the cost is high enough to deter the behavior without either legal or social sanction. That is what the P2P technology changed. P2P enables the low cost mass gift.
At the concrete level, the RIAA would be saying, “Make a compilation CD. Use AOL instant messenger to share MP3 files with your friends. We’re cool with that. But giving away MP3 files by the hundreds and thousands—that’s not flat.”
If Ernest Miller is right about files sharing via HTTP (and I think he is), then this strategy would actually have a chance of success. The RIAA would be trying to limit the copynorm that allows copyright violations to the category of private, noncommercial copying. Of course, this would still cost record sales, but it would not doom the industry. The industry lived with MP3 files before Napster. The industry actually accepted the decriminalization of analog taping. The industry can live with private, noncommercial file sharing.
But “can” does not equal “will”! Suppose that my speculative hypothesis is right and that the RIAA's best hope is to go with the flow. Do I think there is any chance that the RIAA would embrace my modest proposal? Nope! Not a snowball’s chance in hell. And where will the music industry go if it continues its willful blindness to copynorms. I’m not sure where they are going, but it is becoming increasingly clear that they are going there in a handbasket.
The following is from LawMeme's recent features regarding copynorms (Copynorms and Nesson's Koan) at http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1240
I think it is interesting, what do you say? :fire
Copynorms and Nesson's Koan
Copynorms are the informal social attitudes about the rightness or wrongness of duplicating material that is copyrighted.
Introduction
Although the RIAA's litigation offensive is in full swing, there are grave doubts about its effectiveness. On the one hand, the RIAA simply cannot bring enough lawsuits to create a real deterrent effect. First, the number of suits is so small that the actual risk of becoming a defendant times the cost of settlement equals a miniscule amount. Second, the perception among users of P2P programs is that one can avoid any risk of suit by keeping the number of files shared on any one service below a threshold (usually thought to be 1000 files). On the other hand, there is no evidence that the RIAA is changing copynorms. My gut tells me that the law sometimes is an effective norm generator, and the RIAA's prosecutions do communicate the message that filesharing is unlawful. But there are countervailing considerations:
(1) There is a widespread perception that the RIAA is a bad actor, seeking rents for large music companies at the expense of both artists and fans--the accuracy of this perception is not really relevant, because the perception itself shapes norms.
(2) The indudstry's PR campaign attempts to equate filesharing with theft, but folks instinctively understand that file sharing of a nonrivalrous good (the intellectual property) is not the moral equivalent of the physical taking of a rivalrous good (e.g. shoplifting a CD).
(3) Before Napster and other P2P programs, there was a well-established social norm that permitted copying from albums or CD's to make compilation tapes. This norm was reflected in the provisions of the Audio Home Recording Act which immunized the noncommercial copying of analog audio recordings.
(4) The litigation offensive may even create a backlash, as the RIAA goes after single moms and misidentifies sympathetic defendants. This backlash is reinforced by and in turn reinforces the perception that the RIAA is a bad actor.
(5) And of course, there is the obvious point that self-interest favors the copynorm that permits filesharing and disfavors the copynorm that would create social sanctions for use of P2P.
So the question arises: Is there any way out for the RIAA?
Ernest Miller’s Astute Observation
I blogged last week about a post by Ernest Miller on Law Meme, titled Compulsory Licensing - Where Are the Defenders of HTTP?. At the time, I thought it was significant, but as it has had a chance to settle in, I’ve become convinced that Miller's observation reveals something truly important about copynorms. Here is what Miller wrote:
I venture that there seems to be a different set of copynorms for the practice of filesharing via P2P and http. Certainly some defend filesharing via both P2P and http, but others strongly defend P2P with nary a word in favor of http filesharing. Although I have no proof, I suspect that the public's attitude toward filesharing would differ based on the protocol at issue. Would 12-year old Brianna Lahara think it was okay for her to put all her music on a website for the world to copy? Why don't we see people uploading files to their websites more often? Why aren't they more upset when told they can't upload to their website then when they make files available via a filesharing program?
I believe that the difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act [Can't stay away from that Public/Private distinction, huh? - Ed.]. If I were to stand on a street corner handing out CD-Rs to strangers (even were I doing so with no possibility of remuneration of any sort), most people would not consider that proper. If the RIAA were to sue me for such an act, would there be such an outcry over the injustice of it all? Yet, if I handed a CD-R to a friend, most would defend it. The difference is that one is private and the other public.
Let me repeat one sentence for emphasis:
[T]he difference is that filesharing by http is seen clearly as a public act, while P2P seems more like a private act.
Why is this important? Miller has put his finger on an ambiguity in copynorms--a crack in the joints of our attitudes about the propriety of copying. But before we explicate this point, let's back up.
Nesson's Koan
Copynorms are not brooding omnipresences in the sky. They emerge from social interaction, not from abstract moral theory. (Not to say the two are unrelated.) And in the case of copying, the reality on the ground is shaped by technology. Of course, it is a commonplace to observe that the connections between Copyright policy and technology. As Charlie Nesson observed with Zen-like clarity:
There was a time that to make a copy, you needed
a monk, and a desk, and months,
and then Sean Fanning hit the scene.
Or to elaborate on Nesson’s koan, consider this roughly chronological and selective list of developments in copying technology:
Copying by hand.
The Printing Press.
The Phonograph Record.
The Mimeograph Machine.
The Audio Tape Recorder.
The Photocopy Machine.
The Cassette Tape Recorder.
FTP.
Ripping Software & the MP3 File.
P2P
Consider the ways in which copying technologies interact with the publicness or privacy of the act of copying. Copying by hand is private—printing presses are public. Pressing a record is public—making a compilation tape is private. Putting a MP3 file up on a website is public—sharing the same file with P2P is private. What matters is perception. That P2P networks are just the World Wide Web writ small is of no consequence to copynorms—if there is a perceived difference. And there is! Copynorms permitted Alice to make a compilation tape for Ben—think High Fidelity, but they did not permit Alice to make a compilation record and press a thousand copies. Another distinction cuts across the public/private distinction. Some technologies are by their nature “commercial” and some are not. Printing presses are commercial—mimeo machines are not. Record-pressing plants are commercial. Cassette tape records are not.
The Ambiguity of Copynorms
And this brings me to another, crucially important point. Copynorms are informal social norms, and therefore, they are ambiguous and underdeterminate in a way that copyright law is not. (Caveat: Copyright law, like all law, is underdeterminate and abmiguous to some degree.) Social norms or customs are rarely sharp edged. They are amorphous. Our copynorms are not well-defined, precisely because they emerge from the interaction of individual attitudes that are ambiguous and variant and because they are not "laid out as rules" but are, instead, complex dispositions to the expression of attitudes.
Nonetheless, we can try to grasp the shape of the ambiguity. Consider the following two by two matrix:
--------------------Characteristics------
-----------------------of copying
-----------------------------------------
-----------|----Public----|----Private---|
-----------_______________________________
-----------|--------------|--------------|
-----------|--------------|--------------|
-----------|--------------|--------------|
Commercial-|---Taboo------|------?-------|
-----------|--------------|--------------|
-----------|--------------|--------------|
-----------_______________________________
-----------|--------------|--------------|
-----------|--------------|--------------|
Non--------|--------------|--------------|
Commercial-|------?-------|--Permitted---|
-----------|--------------|--------------|
-----------|--------------|--------------|
-----------_______________________________
Entertain this tentative hypothesis--at least for durations of this post! Copynorms disfavor public, commercial copying—even when the copying is legal. This fact helps explain the Copyright Term Extension Act, which could be sold to Congress on the theory that it is just wrong for an author’s writings or composer’s music to be copied in mass, for profit, without permission. Copynorms favor private, noncommercial copying, even when it is unlawful. This explains why the Supreme Court’s decision in Sony is understood to permit any private, noncommercial use of the VCR—even though the language of the decision suggests that archival private, noncommercial copying is infringement. Who seriously thinks it is wrong to keep a videotape of your favorite Seinfeld episode or to make a compilation tape for a friend? But when we think about public, noncommercial copying or private, commercial copying, our intuitions about social norms begin to run out. Is it wrong for a friend to compensate you for taping a miniseries that she would otherwise miss? Does it violate a social norm to put an MP3 file up on a highly visible website or to distribute hundreds of compilation tapes for free? I suspect that opinions differ on these questions.
And here is the RIAA’s problem. P2P is currently perceived as noncommercial, private activity. And the individuals who share files on P2P truly are engaged in noncommercial activity—but as to the private part—that is not so clear.
A Modest Proposal
So here is a modest proposal for the RIAA. Go with the flow! Use the norms, don’t fight them. What does that mean in practical terms? When the RIAA sends the message, “copying is theft,” they are fighting the norms. No one believes that copying is the moral equivalent of theft, because everyone thinks that private, noncommercial copying is just fine. Even the RIAA seems to have thought that when they agreed to the provisions of the Audio Home Recording Act that permit noncommercial analog copying. And the fact that copynorms diverge from norms about theft is rooted in the underlying economic reality--consumption of intellectual property is nonrivalrous, whereas consumption of tangible property is rivalrous.
So here is an alternative message that the RIAA could try:
Share with your friends, not with strangers!
In other words, the RIAA could try to get the public to see that P2P programs are the moral equivalent of giving away hundreds of videotapes or compilation tapes. Those activities are not socially acceptable. They may not be socially unacceptable either. Mass giveaways are rarely a social problem, because the cost is high enough to deter the behavior without either legal or social sanction. That is what the P2P technology changed. P2P enables the low cost mass gift.
At the concrete level, the RIAA would be saying, “Make a compilation CD. Use AOL instant messenger to share MP3 files with your friends. We’re cool with that. But giving away MP3 files by the hundreds and thousands—that’s not flat.”
If Ernest Miller is right about files sharing via HTTP (and I think he is), then this strategy would actually have a chance of success. The RIAA would be trying to limit the copynorm that allows copyright violations to the category of private, noncommercial copying. Of course, this would still cost record sales, but it would not doom the industry. The industry lived with MP3 files before Napster. The industry actually accepted the decriminalization of analog taping. The industry can live with private, noncommercial file sharing.
But “can” does not equal “will”! Suppose that my speculative hypothesis is right and that the RIAA's best hope is to go with the flow. Do I think there is any chance that the RIAA would embrace my modest proposal? Nope! Not a snowball’s chance in hell. And where will the music industry go if it continues its willful blindness to copynorms. I’m not sure where they are going, but it is becoming increasingly clear that they are going there in a handbasket.