In the last few weeks I bumped into several articles addressing the question why people feel OK to up- and download mp3s despite all the laws and legal threats, and how to close the gap between existing copyright legislation and social norms, norms that seem to have a much greater effect on how people behave than laws.
Social norms and the law can interact in a variety of ways: norms can encourage or discourage compliance with law, or they can substitute for them entirely. What we have seen so far, is the complete failure of laws (and interests behind that law) to shift norms towards compliance.
For me the question is not if there is a way to change norms to cover current copyright legislation, but the healthy compromise where these two can meet. One good compromise for me would be an agreement where users respect authors expressed wish not to be shared, like the case of Gary Larson, the creator of Far Side cartoons, who wrote a very convincing letter to his fans asking them to take down his works from fan-sites. (http://www.creators.com/a-note-from-gary-larson.html) As far as I can judge this approach is working: Larson is not a widely shared author on the net.
It is clear that you cannot _force_ people into such compliance. Then what is the solution? All of these articles suggest some very basic steps:
- Build communities based on sustained relationships.
- Improve perceptions of fairness. People are spiteful.
- Give people a chance to comply.
- Involve the fans in enforcement.
(taken from Schultz Copynorms)
Which is intuitive, but very simple. Be a part of your fans community, use your authority and their respect, explain them your decisions, and trust them that they are good. Using these assets, build norms within the community and at the end of the day fans will enforce community rules among each other.
Which is good news for us, who are working on a p2p file sharing system that enables fan communities to play by the rules suggested by the author whose works they love so much. (http://arki.uiah.fi/p2p-fusion)
Oh, the articles:
- Schultz, Mark F., “Copynorms: Copyright and Social Norms” (September 27, 2006). Available at SSRN: http://ssrn.com/abstract=933656
- Schultz, Mark F., “Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law” . Berkeley Technology Law Journal, Vol. 21, p. 651, 2006 Available at SSRN: http://ssrn.com/abstract=864624
- Feldman, Yuval and Nadler, Janice, “Expressive Law and File Sharing Norms” (September 6, 2005). Northwestern Public Law Research Paper No. 05-18 Available at SSRN: http://ssrn.com/abstract=799364
- Strahilevitz, Lior, “Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks” . Virginia Law Review, Vol. 89, 2003 Available at SSRN: http://ssrn.com/abstract=329700
The Larson example seems to indicate that the appropriate legal method (i.e., firing off a cease-and-desist letter) may not always be the appropriate business method. Engaged artists like Gary Larson can and are tilting the social norms a bit, at least with regard to fans. It certainly is a step in the right direction.
I do wonder, however, if most of the real "fans" are the folks doing most of the unauthorized file sharing. By my definition, a fan is someone who wants the artist to do well, to benefit from their creativity. I'm not part of the P2P music culture. However, I am a 2L law student, and I'm amazed at how many of my colleagues are amassing huge libraries of P2P-traded music. One of them told me, "Once I realized I wasn't going into IP law, I fired up Kazaa and got to work." I know other students who *are* going into IP law and continue to aggressively use unauthorized file sharing networks.
My suspicion is that most university-age filesharers aren't "fans" who feel a close connection to the creators of the music and movies they are grabbing off the Net for free. These aren't the people waiting in line to get tickets to concerts. They're not organizing email campaigns to get Firefly back on TV. Quantity (rather than quality) seems to be the big draw, in that filesharing networks allow the creation of enormous catalogues of music, much of which will never be played. I have 4,500 songs in my iTunes library, and at any given time, only a couple hundred of them are in my playlists. Even a very motivated listener would have a tough time making it through the 10,000+ songs that many P2P traders have amassed.
The idea of using real fans to influence filesharing use is an interesting idea. As long as they get something out of it, I think they will ultimately be much more convincing and effective than anyone associated with the recording industry. Perhaps empowered fans truly could create a shift in social norms.