AALS: The Morality of Copyright Disobedience: Larry Solum

Larry Solum, University of Illinois: There is a conflict between copyright and copynorms. Copyright prohibits a lot of socially acceptable conflict, such as, at least until a few years ago, music filesharing. Other examples: making compilation CDs for a friend, photocopying material for small groups, downloading images from the internet – probably a violation of the law; maybe they’re fair use, but they’re socially ok. (Comment: the “downloading images” bit in particular seems an extreme interpretation of the law, unless he means downloading images that weren’t originally put there by authorized parties. I don’t know any copyright person who rejects the idea of implicit license for copies made by surfing, or even permanent copies saved to one’s hard drive.)

Thesis: copynorms reflect historical patterns of technological copying ability, from the age of big printing presses, but we’re in a decentralized, privatized technological environment. Though everyone can now make thousands of copies at home, the “copies at home are fine” norm has persisted. Personal noncommercial copying is socially permissible, as is sharing with friends, but norms support copyright when public commercial copying is at issue. One example: P2P filesharing among young people is okay, but a similar norm doesn’t exist for posting files on websites. P2P is perceived as private, noncommercial, like sharing with friends.

The norm exists in other areas: one can copy an article and distribute it to a class because it’s too hard to get permission. This is arguably unlawful (comment: a lot of the time, it would fit inside the educational guidelines, which were supposed to be well within the bounds of fair use – Solum’s examples just show how far the copyright-expansionist party line has reached) but we do it all the time.

Implications: (1) copyright law is ineffective. Tom Tyler has written about how people comply with the law because they perceive it as just and legitimate. The reverse is also true, when there’s perceived illigitimacy. Harsher sanctions may even increase disobedience by worsening the perception of injustice.

(2) The greater the gap between law and norms, the less people perceive that law has a content-independent aspect of legitimacy and obligation to obey. This creates an existential quantary – either we’re increasingly inclined to think there’s no moral duty to obey the law as such, or we are routinely engaged in serious immorality.

What can moral philosophy tell us? Deontologically, Edmundson’s presentation set out the issues. If you’re a deontologist asking what the rules are, you’re driven to two unsatisfactory extremes, either the Kant/Rawls view of a strong content-independent duty to obey except in very narrow circumstances, or you can go with the anarchists and say there’s no duty as long as we have good and sufficient reasons to act. This creates a serious conflict with our moral intuitions.

If you’re a consequentialist, each act has to be evaluated seperately.

If you’re a virtue-ethicist, there’s lots of work necessary to specify what justice requires. The virtue of law-abidingness, as set forth in Edmundson’s paper, is part of this. To the Greeks, the virtue of lawfulness didn’t map on to the positive law; the Greek term was nomos/nomoi. The desired character trait encompassed positive law, but its focal meaning is closer to following the social norms of the community. Virtuous/excellent humans will have a natural disposition to obey copyright if and only if the law matches social norms. This virtue is content-independent in one sense – it’s not dependent on our own moral judgments. But its relation to positive law is not content-independent.

This suggests two options for bringing copyright law into harmony with copynorms. (1) Expand fair use, create safe harbors, create rights to private noncommercial copying. (2) Bring social norms in line with the law – this is very hard when social norms govern private, consensual, nonpublic behavior, and in general law fails at this task. (If it wasn’t just repeated for emphasis, I’d be fascinated to learn more about Solum’s view of the difference between private and nonpublic behavior – I can see feminist theory distinguishing between the two concepts.)