AALS: The Morality of Copyright Disobedience: Bill Edmundson

Wendy Gordon found a great mix of panelists for this joint session of the IP Section with the Section on Jurisprudence.

Bill Edmundson, Georgia State: We often have an intuition that there is a duty to obey the law. It is universally borne by citizens and content-independent – that is, the moral merits of the law are irrelevant to our duty to obey it. The duty is merely prima facie and can be overridden in specific circumstances, but it’s the starting point.

Rawls set out a justification for the duty to obey, based on hypothetical consent to institutions. Just institutions do not, however, guarantee just (or efficient) laws. Civil disobedience is thus allowed in extraordinary circumstances even in an democracy.

Civil disobedience, to Rawls, is a mode of address by citizens to other citizens. Arrest and punishment are expected and accepted; it is a desperate act justified only as a response to grave injustice that majorities persistently refuse to correct. Only certain kinds of injustice justify civil disobedience – violations of the equal liberty/equal opportunity condition.

How shall this be applied to copyright? For Rawls, there is no natural right to property. Entitlements emerge from basic institutions endorsed by persons in the original position. Incentivizing is built into the difference principle. Bill Gates has a copy of Vista and I don’t. This is prima facie unjust inequality and can only be justified by greater net social output. IP law is a legislative device to create incentives and is not normally a proper subject for civil disobedience. Violations of the difference principle that might arise from the IP laws don’t cut against basic rights and liberties.

Rawls on the defensive: the now dominant counterposition is philosophical anarchism, which denies that the starting point is a presumption in favor of the duty to obey the law. Rather, we should be against any duty that cuts against natural liberty.

Disobedience in IP invites three responses:

(1) Accept a duty to obey and try to satisfy Rawls’ constraints. Some forms of civil disobedience may be justified on the ground that IP can undermine political liberties, along the lines of Rawls’ defense of campaign finance legislation. One could also emphasize the need for a wider public domain to improve moral capacities.

(2) Side with the anarchists and deny any duty to obey the law. IP is no better than any other type of law, and needs justification on its own bottom. The resulting morality requires a kind of honor system, accepting lessened (even suboptimal) incentives for creators. One could also argue for copynorms as a source of moral obligation, which creates many difficult but fascinating issues.

(3) Argue for the binding status of IP as a fair play duty, like a freestanding moral duty not to steal or kill. (I may have misunderstood the role of copynorms; Edmundson may have intended to place them here.)