The more things change, the more they stay the same: copyright, digital technology, and social norms.

• Author: Jensen, Christopher

INTRODUCTION I. SOCIAL NORMS IN COPYRIGHT LAW A. Legal Sanctions and Social Norms: A Brief Introduction B. The Social Fact of Copyright Noncompliance C. The Social Meaning of Copyright? 1. The elusive social meaning of copyright 2. Copyright law's lack of legitimacy 3. Historical roots: Copyright as positive law 4. Some more recent history: Copyright law as the domain of specialists D. The Illusory Promise of Contract Law and Encryption Technology 1. The inefficacy of online contracts 2. Debunking the encryption myth II. COPYRIGHT LAW, COPYRIGHT NORMS, AND TECHNOLOGICAL CHANGE A. A Historical Perspective on Copyright and Technological Change B. Something Old, Something New: Copyright's Response to Digital Technology 1. Continuity between analog and digital copyright 2. The limits of history: Why the Internet is different. 3. A new response: Constructing a digital copyright norm? III. TOWARD A DIGITAL COPYRIGHT NORM? A. Social Norms and Collective Action: The Sticky Norms Problem B. Constructing a Digital Copyright Norm 1. The social meaning of copyright revisited 2. Building a copyright culture? CONCLUSION INTRODUCTION

The advent of rapid reprographic technology and the computer have brought near chaos to the interpretation and enforcement of copyright law. The standard of "fair use" has become the subject of bitter debate between authors and publishers ... and other users of copyrighted materials....

-Elmer R. Oettinger (1968). (1)

The copyright law is in the midst of revolutionary change. We are remaking our world as we adjust to networked digital technology. The borders between legitimate and illegal behavior are the subject of bitter dispute. What we have come to call the conventional entertainment industries--movie studios, music publishers, record companies--have declared war on the new digital media, and the courtrooms are battlefields.

--Jessica Litman (2003). (2)

Plus ca change, plus c'est la meme chose. Copyright law, it seems, is particularly susceptible to recurrent episodes of "revolutionary" technological transformation. As technologies change, the statutory injunction against copying remains the same: not quite "Thou shalt never copy," but rather, "Thou shalt not copy under certain circumstances and certain conditions." (3) But when a new technology arrives on the scene, it rarely comes packaged with a clear-cut definition of what a "copy" is or what these "certain circumstances and conditions" ought to be. It is at the point that the lawyers and lobbyists take over and the engineers fade into history.

Yet it would be misleading to suggest that courtrooms or legislative chambers are the only "battlefields" in these recurrent "copyright wars." In fact, copyright's battles have historically been fought on a much wider front, embracing offices, classrooms, and homes, as well as courthouses and capitol buildings. As new technologies have shifted the ability to make potentially infringing copies from the exclusive domain of expert technicians into the hands of the unskilled individual, copyright owners have repeatedly been confronted with the social fact that most individuals simply ignore copyright laws; as one observer of an earlier battle in the copyright wars put it, "[c]opying laws are almost in the same category as speed limit laws--people forget they are there." (4) This observation would not be out of place today, as the copyright regime faces the challenges presented by peer-to-peer file sharing networks and other manifestations of the online community's endemic disregard for copyright protections.

This Note aims to explore the origins and consequences of Internet users' widespread failure to obey copyright laws. My attempt to understand why people forget copyright laws are there compels me to explain why neither legal sanctions nor social norms have been able to stem the tide of online copyright infringement and to consider what, if anything, should be done about it. Part I briefly introduces the concept of social norms and explains why norms have traditionally had only a limited impact on compliance with copyright law. This Part also discusses, and rejects, the thesis that the digital distribution of copyrighted works will enable online contracts or encryption technology to replace social norms and legal sanctions as mechanisms for enforcing intellectual property rights. In Part II, I examine the response of interest groups representing the film, music, and publishing industries (collectively, the "copyright industries") to new media and distribution technologies, focusing on their attempts to reshape the social regulatory function of copyright through an ambitious project of "norm entrepreneurship"--in other words, rhetorical attempts to construct a self-reinforcing "copyright norm." In Part III, I discuss the obstacles that these legal and rhetorical strategies must overcome. In particular, I focus on barriers to collective action that continue to impede efforts to establish a digital copyright norm. I conclude that despite these obstacles, a copyright norm derived from copyright's traditional balance between private gain and public interest, rather than a "copyright-as-property" norm based on the inviolable property rights of copyright owners, is the most likely source of a sustainable and widely accepted digital copyright norm.

1. SOCIAL NORMS IN COPYRIGHT LAW

   Why do people obey the law? This hoary question has long troubled legal philosophers, (5) and I do not pretend to address it with analytical rigor here. Nevertheless, the mainstream acceptance of peer-to-peer file sharing and the widespread disregard of copyright law that the practice entails begs for an answer to this question. Accordingly, any attempt to understand these phenomena requires at least a pragmatic attempt to provide an explanation for why people obey the law. In this Part, I review one such explanation, as I explore the relationship between "social norms" and obedience to the law and apply this theory to explain why copyright protections are ignored by so many Internet users.

   1. Legal Sanctions and Social Norms: A Brief Introduction

      Any discussion of why people obey the law must begin with the coercive power of the state: People will go to jail, pay fines, or forfeit privileges of citizenship if they break the law. (6) Yet the recognition that fear of punishment cannot by itself explain why people are predisposed to obey legal rules has led legal philosophers of otherwise widely divergent views to reject the narrow focus on legal sanction typified by Austin and Bentham (7) and to seek alternative explanations for the apparent "habit" of law-abiding conduct. (8) For example, H.L.A. Hart observed that people may obey the law "from a variety of motives: some from prudential calculation that the sacrifices are worth the gains, some from a disinterested interest in the welfare of others, and some because they look upon the rules as worthy of respect in themselves." (9) In other words, fear of punishment is but one of many factors in assuring compliance with the law.

      The concept of "social norms" provides convenient shorthand for this broader consequentialist inquiry into the roots of legal obligation. (10) Adopting the vocabulary of law and economics, a body of social norms scholarship has described how failure to observe social conventions can increase the "cost" of violating legal rules, as well as the cost of failure to comply with conventional norms of behavior. (11) Consequently, the disapproval, ostracism, or guilt that results from failure to comply with conventional standards of conduct can supplement or even completely replace the threat of punishment as a means of ensuring that these rules are obeyed. (12)

      Although social norms may arise independently of positive law--Hart's canonical example of the custom of removing one's hat in church quickly comes to mind (13)--I focus here on social norms that work in tandem with the underlying positive law to enforce compliance with legal rules. (14) The most fundamental of these norms is obedience to the law itself. In other words, the law should be obeyed because it is the law. The normative debate about if and when this sentiment is justified falls well beyond the scope of this Note; (15) rather, for my purposes, it is sufficient to note that this sentiment is widespread, particularly in the United States. (16) For example, most Americans stop at traffic signals. In rush hour traffic, the normative content of doing so is ambiguous: People might very well stop because they fear apprehension or out of concern for their personal safety. (17) But tellingly, most American drivers also stop at traffic signals in the middle of the night, when a simple comparison of costs and benefits might suggest that they should run the red light. The inability to explain such behavior in terms of one-step utilitarianism suggests that an intuitive normative calculus of "right" and "wrong" informs the decision to stop.

      While the norm of obedience to the law is a fundamental premise of the social contract, an individual's decision to obey (or not to obey) a specific legal rule also reflects the social meaning associated with that particular decision. Conversely, the social meaning of an individual's conduct may shape the content of the positive law itself. (18) One example of such a feedback loop is found in Richard Ellickson's study of the ordering of property rights among farmers and open range ranchers in Shasta County, California. (19) Ellickson found that rather than requiring farmers to "fence out" free range cattle from their fields, social convention placed the burden of "fencing in" on ranchers, despite the fact that in many circumstances fencing out would be more efficient. (20) This outcome is consistent with trespass law. However, it also reflects the internalization of a conception of real property rights that assigns moral responsibility for the trespass to the...