The Young and the Lawless

downloadingcommunism.jpgI got some interesting comments a week or so on a post called “Is Anyone Against Open Access?” (on the recent movement to make legal scholarship more accessible). I wanted to respond to one point from William McGeveran, who made a point against a status quo of sotto voce infringement:

Even if users of law review content can get away with ignoring a copyright because the practical risk of suit is low, I don’t think that’s enough. After all, we are supposed to be committed to both (1) the law and (2) intellectual openness and interchange. Accepting quiet infringement seems to run against both principles.

McGeveran’s point reminded me of an op-ed column complaining about the recent ban on internet gambling:

The temptation for good citizens to ignore a stupid law is encouraged when it is unenforceable. In this, the attempt to ban Internet gambling is exemplary. . . . And so the federal government once again has acted in a way that will fail to achieve its objective while alienating large numbers of citizens who see themselves as having done nothing wrong. . . . Reflexive loyalty to the rule of law is an indispensable cultural asset. The more honest citizens who take for granted that they are breaking the law, the more their loyalty to the law, and to the government that creates it, is eroded.

And indeed, some recent studies have charted the rise of the “middle class criminal,” arguing that “because of corporate scandals such as the Enron affair or smaller, day-to-day experiences of feeling ripped off, people have developed a syndrome of ‘market anomie’ characterised by distrust, insecurity and cynicism towards laws and regulations.” The “stop snitching” movement may be one more manifestation of the trend.

Still, I think one can distinguish “low enforcement of copyright” from other, more troubling trends of lawbreaking. For one thing, it’s often not really clear if anyone is being harmed by a given act of copying. The added exposure from the unauthorized use may ultimately redound to the benefit of the copyrightholder. Moreover, some new IP laws seem so complex, and so alien to our ordinary experience of culture, that users appear to think of themselves as “civilly disobedient.” Indeed, what looks to be a fascinating panel at AALS this year will focus on just that question. Finally, though they might seem like lawbreakers at first, those who aim to change our understanding of the law via novel and innovative uses of IP may end up looking like visionaries.

So even the superhero Attorney Man might be confounded by the difficult legal and moral issues involved here.

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