Copyright Disobedience

I went to a panoply of panels at AALS–I’ll give some reports here this week. My favorites included two “hybrid” groupings: a panel on the “morality of copyright disobedience” including IP and jurisprudence professors, and a grouping of IP and antitrust authorities at a surprisingly crowded Saturday morning session. I’ll take on the disobedience one first, since it raised some methodological issues I’ve been preoccupied with….

At the panel, Larry Solum presented an impressive application of rival philosophical views to the issue of principle-driven disobedience of copyright laws. After canvassing the shortcomings of utilitaran and deontological approaches, he presented his own virtue theory, essentially arguing that we should seek congruence between societal norms and laws. He also noted how far our DRM-loaded, anticircumvention-obsessed predicament diverges from that happier state of affairs. (I always thought the ideal companion to this panel would be “The Morality of Cartelization,” but that’s another story.)

I had some vague misgivings about Solum’s approach, because I generally distrust any theory that ties the normative too close to existing norms. I also worried that Solum’s approach might be statically just, but dynamically could provoke content owners to aggressively stamp out any emerging norms that threatened existing privileges. But overall I greatly enjoyed Solum’s presentation, thinking it a fine survey of rival philosophical approaches to the problem that would usually fail to get a hearing in mainstream IP scholarship. (Another jurisprudence expert, Edmundson, also provided a Rawlsian perspective on the problem.)

But at the conclusion of the session, Mark Lemley offered a series of challenges to Solum that showed just how unwelcome such an approach might be in mainstream IP discourse. Framing an essentially economic and utilitarian account of the problem, Lemley noted that we could likely all agree that society was best served by some percentage of unauthorized copyright uses — either because of transaction cost issues, poverty, inconvenience, etc. On such an account, it’s the exceptional user — not the social-norm-follower — who is the ideal copyright civil disobedient. If one accepts an essentially economic foundation for legal reasoning, Lemley appeared to have cut the Gordian knot, exposing an extensive theoretical inquiry as essentially useless (or how “philosophy makes nothing happen.”).

Now, Mark Lemley is indisputably one of the leading practitioner-academics in the IP field, and in the legal academy generally. He (and his co-authors) appear, Zelig-like, at the center of just about every major controversy in IP. He’s also a fixture at conferences, and generously engaged with the work of people at the very start of their careers.

But I found myself a bit ill-at-ease with his intervention here, for reasons perhaps best explained by another IP article, by Dinwoodie and Janis, that critiques an entirely economic approach to trademark. D&J argue that we can’t shoehorn all the policy concerns raised by TM law into a economically-driven analysis of things like search costs and incentive-balancing. They took seriously the concerns of both radical critics of copyright, and “natural rights” types arguments for property-like control of TM’s. At the copyright disobedience panel, I felt like Solum was trying to expand the debate in the way Dinwoodie and Janis had–and that Lemley was essentially trying to rein things back in.

I’ll discuss the reasons for my methodological pluralism later on this month — just wanted to note it now for the benefit of anyone who wanted to comment on this exchange. It brought to the surface some of my favorite issues in legal scholarship.