Tuesday, January 09, 2007

AALS Sections on IP & Jurisprudence: Copyright Disobedience: Sonia Katyal

Sonia Katyal, Fordham: Katyal addressed a larger issue in copyright, the lack of clarity as to what constitutes disobedience at all. Social movements critical of IP/copyright generally are dedicated to the idea that information wants to be free and is free. Downhill Battle organizes national campaigns of “copyright civil disobedience,” for example unauthorized public performances of Eyes on the Prize during National Black History Month.

The story of opposites occupies public thinking: you either obey copyright or oppose it. This means there’s a presumption of clarity in the public discourse (when uncertainty is in fact the rule). The RIAA describes piracy, including downloading, as a major threat; stealing is always wrong, and copying is stealing.

We could reject this bipolarity and ask how social norms tolerate certain unauthorized uses and not others. Notably, copyright owners also choose to tolerate many unauthorized uses, such as much of what’s on YouTube and the “Gray Album.” IP is imprecise and even thrives on imprecision.

The recording industry itself was characterized as piracy by composers. This led to a deal between new and old industries with a new compulsory license. In the past, court decisions often favored new industries in a way likely to prod Congress to act. Some kinds of disobedience (disobeying, at least, established players’ desires) motivate changes in the law. In her work with Eduardo PeƱalver, Katyal distinguishes between acquisitive disobedience (downloading) and expressive disobedience (Downhill Battle). The latter has a greater claim to legal protection. (Though the newly formed radio industry was more acquisitive than expressive, wasn’t it, on these terms?)

Underenforcement allows copyright to remain leaky and productive. Copyright’s rules have historically served as a kind of anti-delegation doctrine: the copyright owner hasn’t had absolute rights to determine what’s an authorized use of the work. This is a central feature that owes much to periodic outbursts of disobedience (of whom? copyright owners or the law?), which then lead the law to clarify rights and exceptions. The complexity of determining what is law-abiding has to be factored into any assessment of the morality of disobedience.

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