At Randy Picker’s MobBlog last week, Julie Cohen presented an excellent paper on The Situated User in copyright law. I was supposed to be a MobBlogger, but I got caught up in a meatspace conference and wasn’t able to find time to post. Here are a few post-Mob highlights. I’ve added a brief note of my own, at the end:
Julie’s “situated user” seems to be an entity that, like a copyrighted work, is capable of infinite self-multiplication and variation: beginning from an abstract center point, the person can be imagined following a multitude of paths, with each path defining a new person. The legal goal would presumably be to create a shelter for such perambulations, perhaps a shelter such as a bright-line freedom from liability for experimenters who limit themselves to private or limited-purpose circulation of the works they make.
Now here’s the paradox. Julie wants to abjure abstraction, but the entity I’ve described as needing freedom– her protean experimenter– is an abstraction. It’s a useful addition to the categories of postmodern user and economic user that Julie identifies, but I can’t see how it’s different in kind in the way that Julie seems to suggest it might be. I’d like to know more.
The diversity of uses has grown vastly with the advent of digital technology, and it will continue to grow. So continuing to ignore diversity will only lead us more badly astray. Ignoring new digital uses is quite common in copyright discussions (present company excepted, of course), which helps to explain why copyright has such a bad name among technologists and early adopters.
Which brings me to Tim’s suggestion that we should treat users’ choices as presumptively good. Who knows the most about the universe of uses? Individual users, that’s who. As usual in a free society, we should start with the presumption that citizens can make choices for themselves.
But where I may part company slightly, is in two areas. First, I think I agree with Larry S. — on first reading, the concept of a “situated user” yielded, to my perhaps too-rational choice-infected brain — a unclear way of thinking about these problems. For me, the contribution of the “situated user” essay is to capture real user interests missing from copyright’s calculus. So while Julie points us in the right direction, but I would use different tools.
What tools? In short, I think the economic criticism of copyright’s approach to users is powerful and (at least to me) clearer. There are two basic reasons. First, if you think consumer welfare matters, what a user or consumer wants to do ought presumptively be what users want. Second, economic doctrine is not so narrow as to be unable to capture the user interests Julie discusses.
Itâ€™s here that Julieâ€™s focus on process might help us skeptics and minimalists. By emphasizing the uncertainty and contingency of the processes that lead us to find and produce meaning â€“ even if some parts of the production are not accidental, as David McGowan correctly points out in the first comment here â€“ the concept of the situated user can push us to think about copyrightâ€™s dynamic effects in more than the basic â€œcreate incentives but donâ€™t close off so much that future authors canâ€™t createâ€ way. But Iâ€™d also love to have Julie say more about the ways in which she sees usersâ€™ interests conflicting â€“ is it just the Posner/Landes/Hughes story of conflict?
I think Julieâ€™s paper usefully directs attention to the potential role that smaller-scale users play in implementing shared culture. Alice Randall and Tom Stoppard play a role in implementing shared culture. But so, too, do the folks writing fan fiction, as well as those putting up personal web sites with appropriated materials, sharing music clips with friends, creating short star wars parodies, etc. Individually, the contributions may be trivial, but in aggregate, they play a significant (and I would argue increasing) role in implementing shared culture (particularly the diversity of that culture).
With these smaller-scale appropriations, the issue is not so much fair use (these uses are individually so trivial they will never be litigated), but rather the more systematic barriers to users implementing shared culture. For example, the prohibition on anti-circumvention tools raises the costs of participating in shared culture. If I want to post a digitally-altered clip from the latest Star Wars movie, the DMCA makes it more difficult to do so. (Not impossible, just more costly). Reflexive enforcement of shrinkwrap agreements might also raise such costs.
So, to take Julieâ€™s suggestion to expand beyond fair use, perhaps the situated user perspective would lead us to be more concerned about the impact of the DMCA on the ability of individuals to participate in shared culture. We might ultimately conclude that the impact is not that significant, or that it is outweighed by a greater need to prevent large-scale infringement. But the broader point is that right now, the situated user perspective is largely missing from the debate.
But I am still not sure what Cohen has in mind. What is “open-endedness” and “contextual dependence”? The phrase “open-ended play” is used once in the essay. The phrase “contextual dependence” isn’t used even once. I have nothing against fancy or specialized vocabulary. (To the extent there are norms against such things, I’m a prime offender.) But I’m all for careful definition and conceptual clarity. And I just don’t get what we are talking about, when we say users are “situated,” that their uses are “open-ended” and “contextually dependent.”
But the copyright system also affects other social systems–such as systems of education, community, government, among others. The concept of the situated user may help us to better understand the roles of users as participants in these other systems and how copyright law mediates their participation.
I wonder, however, how the more compete conception of the user can help us. Bill Patry asserts in his comment on Julieâ€™s first post that â€œeverythingâ€ in the formation of copyright law begins by focusing on conduct â€“ what conduct we want to allow copyright owners to control and what conduct we want users to be able to engage in free from liability. But is it really conduct that is the focus of our current systems (both lawmaking and law interpreting)? It strikes me that it is not conduct but end result on which the current system focuses. After all, it is typically the end product that courts examine to determine infringement or fair use. Even in the case of decompilation, it is the end product â€“ the defendantâ€™s non-infringing interoperable product â€“ that excuses the intermediate copying activity.
My hope is that by shifting our focus to think about the role of the situated user in achieving copyrightâ€™s goal, we will break free of solely focusing on end product. We will ask not just what end products that â€œusersâ€ create should be within the copyright ownerâ€™s control and which end products outside of that control, but what conduct should users be permitted to engage in without copyright owner oversight (regardless of end product). This requires a fuller understanding of, and greater respect for, the user.
My reading of Julie’s paper is that it rightly encourages us to focus on “situatedness” of both behaviors and artifacts, rather than only on the user and the user’s work. (In that sense, I agree with Bill Patry that copyright law errs when it distinguishes too sharply between categorical “users” and “authors.”) Taking that point one step further, to my ears, “situatedness” is necessarily social, whether we speak in terms of communities, or systems, or practices. The error of both some consumer-protection arguments in copyright, and much law-and-economics-of-copyright, that they analyze policy and doctrine solely at the level of the individual. It takes a bit of work, and maybe a lot of work, to define what the relevant social parameters are in any particular doctrinal or policy or day-to-day dispute, but unlike David McGowan, I don’t think that this is a swamp. Wendy Gordon’s concluding comment, along with pieces of comments by several others, is right to push us in the direction of refining those parameters, and Julie’s stage-setting post, with its references to the self and social patterns of information flow, shows that she knows that this is where her work is going.