Prof. Justin Hughes, Cardozo School of Law, Yeshiva University
December 13, 2011
One of the troubling things about intellectual property discourse – whether policy discussions in Washington or law review articles on Westlaw – is that arguments (particularly the ones that get repeated over and over) often do not get the kind of scrutiny, analysis, or follow-up that would let us decide which arguments are strong or weak, well-founded or wistful, convincingly proven as time marched on or credible no longer.
So, let’s try to bring some scrutiny to bear on one of the most important clusters of arguments/reasoning in recent years about copyright policy. This line of reasoning has the following basic form:
Explicit Premise: Copyright law is no longer respected
Conclusion: Copyright law must be revised – or disappear
Of course, the details of these arguments vary, but I think anyone familiar with intellectual property discourse will see that this is a general “cluster” of reasoning, well populated with respected scholars. Jessica Litman made a general argument of this form in a recent, engaging piece in the Journal of the Copyright Society;1 John Tehranian’s new book, Infringement Nation, is largely built around reasoning of this sort. Larry Lessig also often makes this kind of argument, albeit usually flavored with technological determinism. For example, in Remix: Making Art and Commerce Thrive in the Hybrid Economy he argues that the widespread P2P and remix activities of young people need to be decriminalized; his argument is of the basic form: [p] young people don’t respect/abide by copyright law, therefore [c] some aspects of copyright law should be changed.
In this essay, I want to scrutinize the explicit premise that “copyright law is no longer respected.” This premise is usually established either as a general observation or as an observation about lack of compliance with the law. Let’s consider each of these in turn.
The general observation that copyright law is no longer respected has been made by many. In the 2011 article I mentioned, Jessica Litman said she has “been struck by the deterioration in popular support for copyright law over the past twenty years.”2 Almost a decade earlier, Jane Ginsburg – one of the contributors to this series – also felt that copyright had “got[ten] a bad name for itself.”3 In between the two, Register of Copyrights Marybeth Peters seemed to feel that consumers already by 2004 “view[ed] copyright in a negative light.”4 Around the same time, Jon Garon concluded:
The combination of copyright’s intangible nature, an accepted norm rejecting corporate greed, the perception that copyright should not constrain legitimate unauthorized users, and the overstatement of copyright’s economic reward create a normative culture where theft of intellectual property is no longer regarded as an illegal, unethical, or antisocial act.5
But what hard evidence do we have for this new “normative culture”? What’s the empirical data backing up this “deterioration in popular support”?
The answer is surprisingly little, particularly when we recognize that while bloggers might be trend-setters and opinion-makers, they are not themselves good indicia of broad-based public opinion. And the little empirical evidence we do have is quite murky.
First, we have to acknowledge the complexity in what we are trying to measure or assess (and, to be fair, Litman, Ginsburg, and all the other commentators know that too). To say that there has been deterioration in popular support for copyright implies that copyright is an institution that was popularly known – just as we would talk about declining or increasing support for progressive income taxes, Congress, state universities, seat belt laws, or affirmative action. All of these are well known (if not well understood) laws, constellations of laws, or institutions. Each of the first three has been in the public eye for a century plus; the last two are more recent laws/institutions, but ones that have been directly affecting a wide swath of citizens for decades.
Copyright is different than all these. Although it is almost as old as Congress – and far older than progressive income taxes – we have only recently entered an era in which, in Marybeth Peters’s words, “for the first time ordinary consumers have come face-to-face with copyright as something that regulates them directly.” John Tehranian echoes this now-familiar idea, observing that the networked personal computing device puts “the functional equivalent of a massive printing press” at each person’s disposal and because of this “a remarkable psychological change has taken place: copyright has begun to infiltrate the public consciousness like never before.”6 The new regularity of stories in mainstream media about copyright issues is both a symptom and a cause of this growing awareness.7
Given this “first encounter” between consumers and the alien world of copyright – “alien” just as environmental or workplace safety laws would be alien to consumers – it’s just not enough that scholars and commentators themselves unhappy with copyright law should just assume that everyone else is equally unhappy. We need to do more homework – and be cognizant of how little homework has actually been done.
Murky results from limited surveys
As far as I can tell, there has been a (very) surprising lack of research globally on popular knowledge of and attitudes toward copyright law. A 2010 report commissioned by the UK government concluded: “There seems very little academic literature on the public’s understanding of IP and its effect on individuals’ propensity to infringe copyright.”8 In surveying the surveys that had been done over the past decade in the UK, the same study concluded that “[a]rguably the major gap in the quantitative evidence base is consumers’ awareness and attitudes toward copyright law itself.”9
The situation in the United States appears to be no better. The Pew Research Center is arguably the most active public surveyor of attitudes toward the Internet yet, as far as I can tell, the last time they focused directly on consumer attitudes toward copyright law appears to be 2003. Their spring 2003 survey of 2,515 telephone interviewees showed that 67 percent of those who downloaded music from the Internet did not care much about whether the music they downloaded was protected by copyright.10 Later in 2003, in a completely separate Pew Center survey of more than 2,000 people, 57 percent responded that they were unfamiliar with copyright law.11 Yet even then surveys were showing mixed results: In the same survey only 33 percent thought that “[d]ownloading a music or movie file off a file-sharing network like Kazaa or Morpheus” should be legal.12 When asked whether it should be legal to make copies of music, film, or television shows and sell them, the affirmative responses dropped into the low single digits.13
A few years later, the National CyberEducation Project of the University of Richmond and The Media Institute – a project coordinated at Richmond by Professor Jim Gibson, also a contributor to this series – did a 2006 telephone survey of 501 students enrolled in college, ages 18-24.14 Of the 501, 39 percent said they were using fee-based services like iTunes and 34 percent said they were using P2P systems; it was 50/50 when they were asked “do you think you will download music or videos from a paid service like iTunes Music Store?” Fifty-seven percent said they were not planning to download from P2P systems in the coming year.
But let’s look at those numbers skeptically and assume that respondents were telling the survey what they expected adults would want to hear. More telling, of 302 respondents who answered “how do you feel about illegal file-sharing,” 39 percent said they didn’t think it should be illegal, while 59 percent answered that it was wrong.15 When asked what came “closest to your opinion about the practice of downloading copyrighted files without paying for them,” 52 percent thought it was “neither legal nor ethical,” while those who thought such downloading was “ethical but not legal” – surely the group that would indicate the law being out of synch with popular attitudes – accounted for only 23 percent.
These numbers are subject to at least two criticisms. First, they can be considered ancient in Internet time. Second – and more importantly – they can be criticized as not focusing on the aspects of copyright law that commentators think are most in need of reform, i.e., the widespread criticism of enforcement measures (current and proposed), statutory damages, inadequate exceptions for non-commercial uses, the copyright term, etc. But these surveys do address some of these points, particularly non-commercial P2P. And contrast academic attitudes about the current copyright term with the fact that the late-2003 Pew survey of 2,000 consumers mentioned above found that “almost half of consumers say that the life-of-the-artist-plus-70-years term is appropriate.”16
For popular attitudes on copyright enforcement, there is a recent 2011 survey by the American Assembly. The survey was at least partially funded by Google and may have been intended to strengthen opposition to new enforcement legislation proposed in Congress. Despite the potential motives, the survey numbers still give us a murky picture. The complete results will not be released until 2012, but the surveyors admit that in their results a “slim majority of Americans (52%) support penalties for downloading copyrighted music and movies.” When you consider all those who didn’t answer the relevant question and add those who support penalties “depend[ing] on the circumstances,” the level of support rises to about 63 percent. Among those who supported penalties (presumably the 52 percent), 87 percent support fines, more than a quarter (26 percent) support “disconnecting users from the Internet” and 20 percent support jail time, i.e., criminal penalties. When asked if ISPs should “block access to sites that provide access to pirated songs and videos,” 58 percent said YES. When asked if search engines should “be required to block links to pirated music and videos online,” 53 percent said YES (maybe not the results Google would have hoped for, but speaking well to the integrity of the survey).
And what about the massive statutory damages permitted in American copyright law? There you might say that the law is out of synch with popular views: The American Assembly survey does seem to show that consumers favor more moderate financial penalties. Yet such moderation and leniency doesn’t seem so true when consumers become jurors.
What juries think
Indeed, jury awards are another way to look at popular attitudes toward copyright. If copyright had little or no popular support, we might expect that juries would tend to: (a) find defendants not liable; (b) find defendants liable only for non-willful infringement; and (c) award minimal damages when they do find liability. Copyright law gives us a built-in mechanism to make these kinds of observations via the wide discretion it gives juries with statutory damages. For each act of infringement, Section 504(c) establishes an award range of $750 to $30,000 for non-willful infringements and a range of $750 to $150,000 for willful infringements.
At least from the cases reported in the press, juries not only seem supportive of copyright and its penalties, they seem downright enthusiastic. In Sony BMG v. Joel Tenenbaum, a five-day jury trial in July 2009 against a graduate student and dedicated P2P user, the court left to the jury the questions of (1) whether Tenenbaum’s infringement was willful; and (2) the amount of statutory damages to be awarded. The jury found Tenenbaum had infringed each of Sony’s 30 copyrighted sound recordings and returned a verdict of $22,500 in statutory damages per infringement, yielding a total award of $675,000 against a graduate student. In Capitol Records, Inc. v. Thomas-Rasset, a 2007 jury of citizens ordered Jammie Thomas – a single mom – to pay $222,000 for her downloading; when that decision was overturned and Ms. Thomas went to court again, the next jury (2009) ordered her to pay $1.92 million17 – for downloading all of 24 tracks.18 In 2010, a trial court in Sweden handed down prison sentences and $4.75 million (32 million Swedish crowns) in damages against the four men who founded the PirateBay website. The trial court decision – the $4.75 million award – was granted by a judge AND three laymen sitting with the judge.19 When the disputes are between corporations, juries may get even more pro copyright. In a September 2011 dispute, a jury awarded Oracle $1.3 billion in damages based on hypothetical licensing fees.20
What are we to make of such decisions by laymen? You might conclude that people get very self-righteous and law-and-orderly when they are on juries; you might conclude that copyright skeptics are eliminated from juries in voir dire or, more generally, that copyright owners hire significantly better lawyers. (Except for the voir dire explanation, I find the “better lawyering” explanation a little offensive to the common sense of jurors.) But however you explain away these results, you cannot seriously contend that these verdicts show a lack of popular support for copyright law.
Staggering amounts of infringement
Another version of this argument establishes the premise that “copyright is no longer respected” via the massive amounts of unauthorized copying and distribution that now happen in the Internet environment. By the time the Grokster litigation culminated in 2005, the Supreme Court had no problem opining that in regard to P2P, “the scope of probable copyright infringement is staggering.” P2P traffic – which everyone acknowledges is mainly unauthorized – remains a huge percentage of the total packet-flow on the Internet. If tens of millions of citizens seem to be blithely ignoring a law, you can make the case that that law has got some legitimacy problems.
This seems like a legitimate approach, yet would we automatically make the same kind of inference for other kinds of law? In other words, with other kinds of law would we readily infer disrespect/disrepute from widespread non-compliance? I think most of us would agree that the answer depends on the degree and sort of non-compliance.
Consider laws establishing speed limits and other traffic rules. We all drive above the speed limit, but almost no one interprets that fact as evidence that speed limits lack popular support. Indeed, a 2002 NHTSA survey of more than 4,000 people showed that drivers “overwhelmingly agree with current speed limits” but also showed “[a]bout 80% of all drivers said they exceeded the speed limit on all types of roads.”21 On city or town roads, 83 percent of those surveyed said that the speed limits in their locales were “about right,” but 78 percent of the same persons admitted that they had exceeded the limit on exactly the same sorts of roads in the prior month. Do these findings suggest massive amount of cognitive dissonance in our driving population? No – because the same survey showed – not surprisingly – that drivers thought they could “drive 7–8 mph over the posted speed limit, on any road, without being ticketed for speeding.” In other words, the non-compliance is widespread, but the non-compliance is not severe – and people expect the system to tolerate that small degree of non-compliance.
Indeed, there are intriguing parallels between copyright and driving laws. In both cases, violations are individual acts that increase individual utility but are believed in the aggregate to lower overall societal utility. Both involve individual acts that seem hard to detect. For that reason, each law has huge amounts of non-compliance. And, just as with speed limits, it may be that non-compliance with copyright law is widespread, but not severe. For example, the 2011 American Assembly survey found that about 40 percent of Americans have copied CDs or downloaded unauthorized music files, but the number who reported getting “most or all of their music/video collection this way” dropped steeply (14 percent) and the number who reported having very large collections of music or audiovisual works from unauthorized downloading or ripping dropped even more steeply (1-2 percent).22 If it’s true that the general population does some unauthorized downloading, streaming, and ripping, but generally supports (or is willing to accept) the basic notions of copyright law, then we have a situation quite similar to speed limits.
At the end of the day – at least at the end of this day – we seem to know surprisingly little about popular knowledge of and attitudes toward copyright law. If the conclusion that “copyright law must change” is based on the premise that “people do not respect copyright law,” then the premise is just not established. The premise is not established because we have very little empirical data directly assessing popular attitudes toward copyright, and disrespect for copyright cannot be inferred from the behavior patterns we see.
Extrapolating from what reliable (sometimes multiple) surveys suggest, we might still formulate a few working assumptions:
- Copyright law is not well understood by a significant portion of the general population.
- Nonetheless, there is popular support for many of the basic propositions or elements of copyright law, including some that are unpopular with academics.
- Popular attitudes on enforcement and penalties range widely, with a significant percentage of the general population supporting penalties that some academics, activists, and even judges would consider harsh or excessive.
- Despite all that, there is widespread non-compliance, i.e., many people engage in limited infringement (with very few people engaging in massive infringement).
None of this speaks to the vision, wisdom, or good intentions of those who advocate reforms of copyright law, whether large or small. But such proposals should be judged on their own merits, not as means to better align copyright law with popular attitudes – popular attitudes that are presumably in flux and on which we need to do more homework.