Mark Schultz on copynorms

Today’s GW IP colloquium featured Mark Schultz, who spoke on Copynorms: Copyright and Social Norms.

Two assumptions Schultz challenges: (1) copyright owners will inevitably exercise their rights, whatever they are, to the fullest extent possible; (2) copyright users, both ordinary consumers and subsequent creators, are incorrigible, and if they think they can get away with an unauthorized use, they will do it. Copynorms have a significant moderating, extending, and undermining effect on the effects of copyright law.

We know enough now about social norms to predict how people will behave in certain situations. We can’t easily manipulate human behavior, but we can structure business practices that make users more inclined to comply with copyright law and owners more willing to allow some uses.

The economic model: can means will on both sides; everyone will go as far as possible to get economic reward/something for nothing. But copyright owners often forgo enforcement.

Sources of injunctive copynorms: writers and scholars (attribution and plagiarism), Creative Commons, open source, librarians, hackers & warez traders. Attribution substitutes for copyright by allowing some copying as long as there’s attribution, and plagiarism goes beyond copyright by covering public domain works (and ideas). Writer’s norms are important by comparison to other domains – musical sampling or putting a picture in the background of a movie are legally risky and usually involve licensing.

Newer norms are emerging from norm entrepreneurs, whether outside of or undermining copyright law like warez traders.

Other norms are more likely to be emergent and descriptive rather than arising from intentional behavior. Once everyone does it, it becomes self-sustaining because everyone does it: search engine indexing, e-mail reply & forwarding, home copying, file sharing. (Is search engine indexing emergent and descriptive, or did AltaVista, Google, etc. push it on us as very successful norm entrepreneurs?) Indexing wasn’t challenged despite our litigious society for a long time. (But that could have been because (1) most of the copyright “owners” didn’t perceive themselves as such and weren’t traditional content owners; (2) copyright owners who were unsophisticated technologically and/or recognized they benefited from indexing; (3) copyright owners who were sophisticated technologically found it simple to opt out if that was beneficial.)

Given that these practices are so common, courts are often baffled when the issue is finally litigated and there’s no precedent despite years of experience. This is really a healthy sign that descriptive copynorms are allowing people to coordinate their activities simply.

Good news: we (who? Lawyers? Businesses?) may be able to influence copynorms. It’s never a sure thing, but we do know how to build support for some norms. Influences on norms: (1) Persuasion, including advocacy, public education campaigns, etc. (2) Perceptions regarding others’ level of compliance, such as beliefs that other people are using iTunes. When people believe most other people comply, they’re more likely to comply. Many ad campaigns that try to change norms are actually counterproductive, because they highlight people breaking the supposed norm/law and send the message that the descriptive norm is that “everyone’s doing it.” The RIAA similarly shoots itself in the foot with apocalyptic rhetoric. Why should I be the last sucker who pays for music? (3) Relevant peer groups are important. (Buzz marketing ahoy!) (4) Reciprocity. Perceptions of fairness and cooperation are likely to shape social norms. Under favorable conditions, cooperation can be sustained even with a minority of cooperators; but under other conditions, reciprocity leads to lack of cooperation when they perceive others are getting away with opportunistic behavior. Thus reciprocity can sustain either pro-copyright or file-sharing norms.

Case study of jam bands like the Grateful Dead, which have sustained copynorms that require payment for some music while allowing free sharing of other music. This is an alternative to ever-greater legal penalties and technological controls. Rules: the bands say no copying of commercial releases and no commercial exploitation of concert recordings, and they reserve the right to withdraw certain concerts from circulation. The surprising thing isn’t that the bands have these rules, but that they expect and receive compliance from fans. Fans help police one another and non-fans, and even cooperate with the bands’ lawyers.

New business models: non-copy-protected recordings sold online, because the bands trust their fans and ask them not to share widely. Can we extend this beyond a quirky group of people?

Reciprocity has been extensively studied – people will sustain cooperative equilibria given the right conditions, which mimic much of what’s going on in the jam band community. Lessons: (1) Don’t assume the worst about music fans. Some people will comply with law given the opportunity; people come in inclined to cooperate. (2) To help ensure cooperators predominate, build communities based on sustained relationships between creators and fans. The communities can be large and anonymous, but consumers need to feel a connection with the artist, and are more likely to encourage others to comply if they do. (3) Perceptions of fairness are also key: people are spiteful and will incur costs to punish those they see as unfair. Jam bands are perceived as much more fair than regular musicians. (4) Give people a chance to comply and more will. (5) Let the fans do some of the work; they will do so.

This can also apply to CC and open source scholarly publishing. We need visible opportunities to comply and promote it, through things like viral advertising and conferences that publish papers in open-source fashion.

Laura Bradford: A lot of these suggestions seemed difficult for a record company to implement – fans cooperate with the legal team of the band, not the legal team of the record company. How can intermediaries use this, when their very presence creates a distance between artist and fan?

A: Well, this does imply a different world for intermediaries. (Google is an intermediary, and Schultz pointed out that every user loves Google.) There’s still a role for aggregators, if they follow a CC model but act as facilitators for commercial uses and provide helping tools like standard contracts for bands that aren’t entrepreneurs.

Q: In college communities, norms of free flow seem rampant – how can we bring more moderate copynorms to groups of young people who are used to P2P and high-speed connections?

A: College students do pose a problem for the record industry. Some steps have been reasonable – there is some role for credible enforcement, informing people what the right thing to do is. Beyond a certain threshold for the risk-averse and the law-abiding, it is hard to convince people they’re likely to be caught, and there’s a long way to go before we’re close to that. You’re more likely to be struck by lightning than sued by the RIAA. MySpace and Facebook are places where bands are going now, and some use them intelligently to communicate with fans and create perceived connections.

Q from me: I still don’t see where Google is reciprocal; the distribution of benefits isn’t particularly fair. Yet everyone thinks it’s great.

A: It may be more perception of fairness than reality (this is a paraphrase of his answer); it is a complicated question. Google does provide coordination benefits and helps you find new and useful webpages. (But then again, so do record companies, which are seen as evil. How did Google win the PR war and the RIAA lose it?)

Q: Producing a record takes a lot of cooperation and hard work, but people don’t perceive all the support that goes into backing the artist/artists. Is there any way to get people to see that and like record companies better, or do people just want to identify with an individual genius?

A: The MPAA has tried to do that with its PR campaign about people who paint the sets and could lose their jobs from file-sharing; maybe they have an impact. The problem of file-sharing tends to divide the music world into haves or have-nots. Jessica Simpson and Britney Spears can use their rights of publicity even in the absence of copyright, but the mid-level touring artist is the one who’s hit hard by filesharing. Maybe the cult of personality has gone too far, but we need to build a support network for the non-famous individual artist.

Q: When there’s a disconnect between legal and social norms, when do we decide that the legal norm is the problem? Your presentation is focused on making the social norm conform, but why not go the other way?

A: Flip response: as hard as it is to change social norms, it may be even harder to change the law, given public choice problems. There is a huge literature on this problem, as with Prohibition in the US, where the failed law harmed respect for all laws. We don’t have a big gangland problem with copyright, but rather a lot of friction in a time of technological and institutional change. We don’t know when a norm has become intractable and the only choice is to change the law. Dan Kahan has a seminal article on “hard shoves and gentle nudges.” Drunk driving: many laws initially penalized it very harshly. Cops weren’t willing to arrest and juries and judges weren’t willing to convict and sentence, because the penalties differed so much from the norms. Only slow increases in penalties plus a public education campaign proved successful.

Q: Niva Elkin-Koren talked about CC upholding copyright law’s assumptions – do you agree?

A: CC can definitely reinforce existing structures. Some businesses see CC as a way to legitimize their businesses, allowing private noncommercial use but in fact increasing control over the work by making it very clear what people are allowed to do with it.

Q: Are copynorms easier to enforce in smaller communities than bigger?

A: Absolutely. Smaller communities offer a higher probability of retaliation; the mechanisms that sustain reciprocity in larger groups are more amorphous and slower-moving. Still, we see such norms operating all the time (you tip when you’re in a restaurant in a strange city to which you never expect to return).

Bob Brauneis: Doesn’t enforcement of law sometimes work as a way of changing norms? If the police start to give parking tickets, sometimes people stop parking in no-parking zones. Hard and irritating methods can work along with soft and friendly methods.

A: Sure. People know that so far the RIAA has just targeted large-scale sharing. Only going after simple downloaders will increase the deterrent effect. There are some people who have a zero tolerance for risk; going beyond the zero risk will have a huge effect on compliance. But after that, to get the people with above-zero tolerance, you have to increase the probability of getting caught a lot because it’s hard to persuade those people that they’re personally likely to get caught. People irrationally discount their own chances of getting caught and systematically discount the cost of future penalties. So once over the zero boundary, the huge gains from enforcement drop off.

Q: An empirical study showed that initial enforcement produced a drop in filesharing, but in a few months that dissipated because people realized that there was less likelihood of getting caught. Separately, some people who download wouldn’t pay for the music but will get it for free; others would have bought but let the free substitute; others are just interested in taking a stance against the “system.” How do you deal with different motivations to comply with or reject social norms?

A: There may be biological differences in inclination to cooperate. Peer reference groups also influence norms. We have to do what all economic models do, which is say we can affect behavior at the margins. The rational choice model that looks only at pecuniary gain is wrong – culture, ideology and norms also matter, and we can use those, even though there will still be holdouts who can’t or won’t pay.