What Copyright Law and Plane Crashes Have in Common

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8 Responses

  1. Kevin Guidry says:

    Bruce, you assert in the next-to-last paragraph that “[rules of thumb or misinterpretations] are attempts to change the design of copyright law to meet the cognitive capabilities of ordinary people.” I understand what you’re saying but it’s phrased very poorly. It’s not that non-lawyers (and many lawyers, too) are too dumb to understand copyright law but that they lack the experience and desire to understand it. One doesn’t have to be a genius to understand law, practice law, or do many of the things we think of as “difficult” but you do have to have desire and perseverance.

  2. John says:

    Not sure that was what he was saying . . .it IS far beyond the cognitive capabilities of average people to understand copyright law given the level of time and attention they are willing to devote to it. If most people had higher cognitive capabilities, they could hear copyright law once and know it forever. But they can’t.

    In any event, a semantic quarrel. I’m sure Bruce agrees with you.

  3. Bruce Boyden says:

    Kevin, I agree entirely with your last two sentences. I’m using “cognitive capabilities” to include capabilities gained through learning and experience. I agree that’s not always how it’s used, but it struck me as an acceptable use of the term in this context, where the question is how much a non-copyright-lawyer can reasonably be expected to process and internalize. In any event, even if I’m wrong about that, that’s what I meant to say here.

  4. A.J. Sutter says:

    Why invoke the metaphors of cognition or capability at all? If you preface those rules of thumb with “As a practical matter, …” you could just as easily transport the discussion into the realm of efficiency, framing the discussion as one about economics rather than about quasi-biological capacities and “internalization”.

    And anyway, as copyright law evolves through judicial opinions, legislative changes, etc., how will those changes be “internalized”? Will we have to be implanted with microchips to get wireless updates from the respective federal circuits within which we reside?

    I agree with your basic idea that the current law is just too darn complicated. But I don’t think that using biological metaphors (including also “maladapted” for “humans”, etc.) is very illuminating. Especially because for some humans the rationale and origins of copyright law, to say nothing of notions like the “moral obviousness” (vel non) of copying, are quite different from those you described. E.g., in China, which has more than 3 times as many humans as US.

  5. Bruce Boyden says:

    AJ, I’m not sure why you think I’m speaking in metaphor. I used the terms “cognitive,” “capabilities,” “maladapted,” and “humans” because I meant to talk about what’s well adapted for the cognitive capabilities of humans. I’m not sure how I’m supposed to do that without using those terms. As for “internalize,” I meant it in the sense of internalized rules, not in the sense of internalized microprocessors.

  6. A.J. Sutter says:

    The microchips were just a gentle lampoon, of course. But walk around in the statutes section of your law library and consider to what extent all the stuff there can be “internalized” by any citizen whose life is regulated by it. (Don’t forget the CFR.) Then look at the case reporters and consider how unnecessary they would be if most laws could be internalized easily. From this perspective, the singling out of copyright law is puzzling.

    The metaphors I referred to aren’t the poetic kind, but rather the categories in which you chose to frame the problem. (I’m far from being an unmitigated fan of the Lakoff & Johnson approach to metaphor, but you might look into their “cognitive linguistics” style of analysis, e.g. _Metaphor: A Practical Introduction_ by Z. Kövecses (OUP 2002).) “Cognitive capabilities of humans” and “maladapted” include phrases from neurobiology and evolutionary biology, suggesting that your argument is borrowing some of the scientific prestige of those fields. The references to “system accidents” in the engineering field have a similar rhetorical force.

    I’m not questioning your sincerity in making these analogies or otherwise framing the issues in these categories. What I am questioning is, do we learn a lot about copyright law by pulling it into the realms of biology and engineering, or is this just a fancy way to legitimate criticisms of the law (which I agree are well-deserved, BTW)? I’m inclined to the latter view, since (i) the issue can easily be reframed into other domains, such as economics, (ii) US copyright law is very specific to US culture (except to the extent we have foisted it on others via TRIPS and bilateral treaties), and (iii) other countries have very different copyright laws, as well as many other laws that are quite inscrutable. The significance of (ii) and (iii) is that they makes it hard to claim that US copyright law (a) is somehow uniquely determined by human biology (not your claim, I think), and (b) is somehow uniquely refractory to human biology (does seem to be your claim, at least in comparison to “most laws”).

    That doesn’t mean US copyright law isn’t a mess. Just that prima facie it seems neither necessary, nor particularly illuminating, to adopt a scientistic point of view to talk about the mess or how to fix it. In other words: nice try to make a connection, but I think you’re stretching a bit.

  7. Bruce Boyden says:

    AJ, I agree with you entirely that it’s important to question whether (and/or how) copyright law is different from any other law in terms of its complexity. After all, law as a whole is not famous for being transparent. I think people who criticize copyright as (implicitly) being worse than other laws often fail to spell this out. I hope to address this issue in a later post.

    As for what do we learn, I think I can clarify this much: I didn’t intend to say copyright is a system accident. Rather, I began by talking about system accidents simply because I’m interested in them, but then segued to talking about human factors engineering. That’s the parallel I intended to draw. I think the modern conflict over copyright law is due to it’s not being designed well for a role it is now being forced to play: regulator of individuals. An efficient regulator of individual behavior is one that can be internalized, i.e., that people follow on their own even if the prospect of enforcement is minimal. The fact that this is becoming an issue now struck me as relevantly similar to the realization the air industry and others came to that they could get people to make fewer mistakes — follow the “rules” — by changing the product design, not just by training the people.

    But if that was too far to go for a Camel, well, c’est le blog.