AALS Sections on IP & Jurisprudence: Copyright Disobedience: panel discussion

My questions for the panel: Solum immediately introduced the word “arguably” to modify “violating the law.” Is there a difference between being told by a judge or a police officer to stop doing something versus being told by the RIAA? How can a Rawlsian factor in uncertainty to the civil disobedience equation? On the other hand, how do we know what the norms are? The RIAA is intervening in that debate as well. How does a virtue ethicist deal with norm shifts or conflicts between norms? See also China, where there may be no norm against commercial copying of foreign products. Does a virtue ethicist endorse that?

Solum: If you believe in a duty to obey the law, you have to have permission to test the law if there’s genuine doubt. Assessing normative change: we need a theory of the purpose of law, e.g. to create conditions of human flourishing. This would imply a conventional policy analysis on what law promotes creativity and dissemination.

Edmundson: The term “norm” is ambiguous. It might be positive, describing custom and habit, but it can also be normative, as in critical moral norms. Social norms may arise without being objectively defensible. One example might be speed limits; in his area the posted limit is 55 mph and the actual speed is about 75 mph; neither seem optimal.

With respect to copyright, free riding is the key question. The literature arising out of Rawls’ discussion of the duty to obey derived a general principle of fair play. This was intensely attacked by Nozick. Imagine you live in a neighborhood with 364 others who get together to play classical music over the PA each day. You like classical music, but don’t want to volunteer one day a year. Does your enjoyment impose on you a duty to contribute? No: benefit does not in itself give rise to reciprocal duty. Free riders take without giving back a fair share, but it’s difficult to formulate a rule against that in a deontologically plausible way. People who send you stuff in the mail don’t create any moral obligation in you. Yet it also seems that we sometimes have a duty to do our fair share. Can norms or law draw the line?

Dogan: Widescale voluntary compliance exists, limiting the free riding problem. The question is whether this would continue to be true if we changed the law.

Question for Solum: Was Bull Connor a virtuous person in adhering to positive law and norms?

Solum: Very short answer – the main talk required shortcuts. Not all things are norms to which adherence is a virtue. A norm has to be widely shared and deeply held. It must also fulfill the function of law by promoting conditions of human flourishing for all citizens. Bull Connor was only acting for part of the community. In copyright, there is an equivalent question: if copyright is clearly cutting off human flourishing, it would not be virtuous to follow the law.

Question for Katyal: is dynamism a positive virtue? Or only if your side wins? The DMCA is obviously a change produced by ferment – is it good therefore?

Katyal: There are two payoffs of dynamism. The law sets a baseline level of regulatory oversight of disputes, taking some decisionmaking power out of copyright owners’ hands. Congress can consider the value of innovation. Her position does offer arguments against DRM – we shouldn’t delegate full authority to the copyright owner. At times, copyright disobedience can motivate shifts from property to liability. One possibility now is levies for filesharing. Disobedience can lead to an income stream for copyright owners.

Questions for Dogan: For your category (2) of boundary disobedience, declaratory judgment actions are possible, so doesn’t that affect the morality of disobedience? For (3), civil disobedience, you’re making a claim that the First Amendment trumps copyright so the positive law is really on your side. For (5), commercial misbehavior, antitrust claims are available – if a separate law exists to remedy the problem, disobedience may not be morally permissible.

Answers: (2) You still have to engage in the disobedience to have standing, so that can’t answer the morality question. (Consider the Felten saga, which shows that you may not have standing even then!) (3) The First Amendment argument might be true in some cases, but not others. Many courts have found that the First Amendment doesn’t trump copyright law. (5) Antitrust claims may or may not be available – the doctrine these days is quite restrictive. The students’ concerns, which included coordinated behavior by the industry, do not give rise to actionable claims.

Mark Lemley: The optimal economic result may well be some, but not much, infringement. This creates a puzzle: does morality require a deviation from maximum social welfare? Or do you need to disaggregate behavior and check whether you’re not behaving normally? Maybe copyright disobedience is only justified when it’s non-normative.

Solum: This raises a profound question that, restated within moral philosophy, asks what obligations there are under act utilitarianism. Perhaps just those people whose disobedience will create the greatest social good should disobey. But if we need 15% filesharing, how do I know if I’m in the 15%? Stability in norms is very difficult, which is a general problem of act utilitarianism. Hare’s solution: on the ground, people ought to use rules despite utilitarianism, because we lack a God’s-eye view. It’s a crude result, but as good as we can get.

Question: Much disobedience has to do with enforcement (absence of blanket licenses, resistance to enforcement by private parties) rather than copyright itself.

Dogan: This relates to the boundary issue. Enforcement tends to push for stronger rights, leading to a moral claim for resistance. But it’s not necessarily okay to break the law just because you don’t like the industry standards like a la carte licensing.

Katyal: There is a moral argument for filesharing as resistance to overenforcement – e.g., the Diebold case – to promote access to information.

Pam Samuelson: What about dysfunctions in the legislative process as justification for disobedience? Disobedience counterbalances an otherwise failed system – it is simply unlikely that law will be brought back into conformance with social norms. As scholars, at some point we need to try to solve the norms/law gap or stop spinning our wheels in complaint.

Solum: An eternal question – the relation between normative theory and political possibility. Samuelson’s frustration is pervasive and even corrosive. There’s such a gap between the ideal copyright law and possibilities in our actual political system. What is our stance when the first-best world is impossible?

Dogan: Classic copyright civil disobedience could fit into this. It calls attention to the plight of individuals who are sued unjustly. The challenge is to ask whether this is essentially a just form of government – will decisionmakers respond if the claims are sufficiently powerful?

And that was all the time we had. Congratulations again to Wendy Gordon for organizing (and to Graeme Dinwoodie, the new chair-elect nominated by incoming chair Jessica Litman).