Tuesday, January 09, 2007

AALS Sections on IP & Jurisprudence: Copyright Disobedience: Stacey Dogan

Stacey Dogan, Northeastern: Disclaimer – she’s not a philosopher. She proposes categories of noncompliant behavior, perhaps incomplete and definitely overlapping. We can initially distinguish between acts contrary to law and uses unauthorized by copyright owners, the latter of which is a broader category.

(1) Commercial, nonpersonal, exploitative use: an easy case, but why? If we accept the basic market failure premise of copyright, such use goes to the very reason we have copyright in the first place. There is no compelling justification to counteract the weight of copyright’s theory – such copying has no expressive value and it’s done for private gain. Even if we don’t think copyright is efficient, its premise isn’t flagrantly unjust or immoral. This kind of copying also lies outside social norms.

(2) Something that may not be disobedience at all: boundary disobedience, openly testing the limits of uncertain laws. Boundary disobedience may or may not be commercial. The goal is to persuade a court that this is not infringement, and often to preserve users’ rights. This doesn’t feel like disobedience, because of the user’s belief in the legality of her conduct. It promotes important social objectives: clarity, free speech, transparency/openness in airing both sides’ arguments. It may be morally compelled to do this to prevent otherwise inexorable narrowing of users’ rights.

(3) Classic civil copyright disobedience: deliberate public and flagrant violation, committed ofr the sole purpose of challenging the law on free speech grounds – the online gallery of DeCSS is one example. The Downhill Battle/Eyes on the Prize events are another. The keys are openness and risk to oneself. Many would see this as a legitimate appeal to government/other citizens, illustrating injustices. Like boundary disobedience, it creates an opportunity for full and fair discussion of the issues. Complicating factors: openness and risk are relative, and have become more so in a global age. Often protestors are remote and dispersed. Such disobedience can also have a cascade effect, breeding further protests and making the risk to each individual protestor lower and diluting the moral effect of willingness to be caught. (It seems to me this was also true of classic civil rights protests; my husband’s mother was arrested at a Baltimore sit-in, but was ultimately not prosecuted – her status as a nice white girl always put her less at risk, but that can’t have invalidated the justice of her disobedience.) Moreover, the potential harm from cascades may be greater than in non-internet contexts. The calculus of disobedience may just be different now.

(4) Personal free riding: Dogan isn’t trying to use “free riding” as a distasteful term. It’s simply the use of an information good without paying for personal purposes. It may be in protest, or it may just because the person enjoys the content. Many filesharers are like this. It conforms with existing social norms, some longstanding. Downsides: it works only as long as paying customers buy enough to preserve copyright’s incentive structure. Sometimes disobedience breeds disobedience, and copyright owners can’t discriminate between those who’ll pay and those who won’t. People spiral into nonpayment norms. It’s hard to isolate the morality of a single actor here because of the inherent interconnectedness of internet-based disobedience.

(5) Private disobedience designed to influence commercial actors rather than government: five years ago, Dogan’s students argued that the music industry was corrupt, oligopolistic, and inefficient, and the market needed to change. Once you’ve achieved that objective, however, disobedience should desist: now that per-song downloads exist, this category seems empty/illegitimate.

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