• Selected
• Entire List

Abstract:
Social norms regarding the copying, distribution, and use of expressive works (copynorms) are essential to understanding how copyright law affects society. By mitigating how stringently copyright owners and users actually enforce and observe copyright law, copynorms - whether those of librarians or file sharers - moderate, extend, and undermine the effect of copyright law. Yet, scholarship and public policy debates all too often overlook this phenomenon. This paper addresses this gap in the literature.

After reviewing the legal scholarship and social science literature on how social norms interact with law, the paper examines several examples of copynorms that significantly alter the effect of copyright law. First, the norms of some communities consciously seek to mitigate or combat the effects of copyright law: the norm entrepreneurship of Creative Commons; writer's norms in favor of limited quotation with attribution; the norms of the open source and free software community; the norms of librarians; the norms of hackers; and the norms of warez traders. Next, there are copynorms that arise from collective behavior more than conscious design: the acceptance of search engine indexing and archiving; e-mail replying and forwarding norms; blogger norms; and consumer home recording. Last, the paper examines the role of social norms in the greatest of copyright's current social dilemmas - file sharing - and concludes that copynorms are essential to understanding and resolving this challenge.

Based on analysis of research regarding the relative effectiveness of normative strategies and deterrent strategies for securing compliance with law, the paper concludes with suggestions for how copynorms might be influenced to foster greater support for copyright law. For example, the entertainment industry needs to support highly visible, legal alternatives to file sharing, while aggressively portraying compliance as the norm rather than the exception. Allowing people to believe that file sharing is the norm is disastrous to efforts to foster pro-compliance norms. Consumers' perceptions of fairness of business practices are also important, because norms are influenced by reciprocity. Finally, copyright owners may need to rely increasingly on core communities of avid fans, encouraging them to assist with the distribution and marketing of their work, enforcement of rights, and promotion of pro-compliance norms.

copyright, social norms, copy norms, Creative Commons, file sharing

Abstract:
Conventional wisdom says that people using modern technology are unlikely to obey copyright law, absent fear of lawsuits or extremely strong copy protection. This Article challenges that conventional wisdom. It explores why people obey copyright law and concludes that people can be persuaded to obey copyright voluntarily, provided that copyright owners can encourage the development of pro-copyright social norms.

This Article contributes to both the social norms and the copyright literature by explaining how pro-copyright social norms might be fostered from a behavioral trait known as reciprocity. It draws insight from a case study of a community of music fans centered on artists known as jambands. The jamband community has developed social norms that reinforce and respect artists' copyrights. This Article examines the latest theoretical and laboratory and research regarding reciprocity to explain why and how the norms of the jamband community can be duplicated more widely.

Copyright owners have mistakenly focused almost exclusively on deterrence rather than fostering social norms that support compliance. Studies indicate that people are motivated at least as much by their belief that a law is moral as they are by fear of the consequences of violating it. In fact, attempting to enforce laws that contradict social norms is counterproductive. Copyright owners would do well to persuade people that obeying copyright law is the right thing to do, rather than merely prudent.

The experience of the jamband community provides a model for the development of pro-copyright social norms. The jamband community is a vital and growing movement in popular music that includes some of the top-grossing touring bands in the country. The original jamband was the Grateful Dead, but the label now applies to bands from many genres. What defines a jamband more than anything else is its policy regarding intellectual property: Jambands allow their fans to record live shows and to copy and distribute the recordings freely. Jambands have developed a unique bond of trust with their fan community, which has developed social norms against copying musical works that jambands have designated as off limits. These restricted works are typically studio recordings or live releases sold commercially. The community enforces these norms, sometimes even reporting violations to the bands' attorneys.

The social norms of the jamband community might be a mere curiosity but for the fact that they are based on a deeply rooted human behavioral trait known as reciprocity. Reciprocity motivates people to repay the actions of others with like actions - value received with value given, kindness with kindness, cooperation with cooperation, and non-cooperation with retaliation. Recent theoretical models, supported by laboratory research, contend that reciprocity can foster and sustain pro-social, cooperative social norms under the right circumstances. This Article's case study of the jamband community adds to the growing body of field research that further confirms the existence of pro-social norms founded on reciprocity.

Since the social norms of the jamband community are rooted in this universal behavioral trait, we can draw several potential lessons for the mainstream music community. The example of the jamband community may offer a carrot to accompany (or supplant) the stick of lawsuits. It also offers an alternative to proposals for ever-escalating regulation, more restrictive technology, or radical changes to copyright law. The Article concludes with several concrete proposals for changing business models and enforcement strategies to promote pro-copyright social norms.

copyright, social norms, norms, reciprocity, behavioral economics, file sharing, filesharing, peer-to-peer, p2p, jambands, jam bands

Abstract:
This article considers whether the emergence of business models based on free digital delivery of music and other content have rendered copyright protection less necessary or justifiable. Falling production and distribution costs have led many scholars and popular commentators to conclude that creators can and should embrace free distribution models for copyrighted works. In particular, many contend that the recording industry can survive and prosper by producing and freely distributing recordings as a form of advertising for the concert business. Some have further concluded that copyright law may need to change to reflect this new reality.

This article assesses such proposals, drawing insights from cultural economics, the literature on the economics of copying, and empirical data regarding the health of the concert industry. When free business models work, they can work quite well (e.g., Google and, long before it, commercial broadcasting). Examination of theory and practice shows, however, that such models are practicable and desirable only under certain, specific circumstances.

The success of free business models depends on a fairly tight link between the free content and a sufficiently remunerative good or service. Concert revenue is not particularly tightly linked to free recordings - certainly not as tightly as examples such as open source software and support services, or online children's games and plush toys. Moreover, the concert business is lucrative mostly for older, well-established acts. The data collected here on concert revenues indicates that a handful of older acts now make most of the money in the concert business, while ticket prices for smaller, niche acts have stagnated over the last decade. Although much maligned, the modern record business supports a vast, remarkably diverse variety of recordings. If it had to rely on concert revenue alone, some acts would probably continue to record, but diversity and consumer choice and welfare would likely decrease.

The shortcomings of the live performance model indicate that the existence and occasionally tremendous success of "free" business models do not justify wholesale changes in copyright policy or legal doctrine. Business models based on direct sales and supported by copyright still provide tremendous advantages for creators and consumers.

copyright, live performance, indirect appropriation, recording industry, record business, free business models

Abstract:
This paper advocates a grass-roots, pragmatic approach to intellectual property and economic development in poor countries that focuses on how copyright and related institutions can support bottom-up growth. Two case studies inform this paper's analysis: The development of the country music industry in Nashville, Tennessee, and the challenges faced by the popular music industry in Africa today.

First, we consider the story of Nashville's development into "Music City, U.S.A." as a hopeful example of how a popular music industry can support economic development. Although an example drawn from one of the world's wealthiest countries may not initially seem relevant, early 20th century Nashville faced many of the same challenges as today's developing economies. As is often the case in modern times, Nashville's policymakers pinned their hopes for economic development on access to raw materials and large government infrastructure projects. Success instead came from an unexpected quarter, as musicians and entrepreneurs transformed much-maligned "hillbilly music" into the multi-billion dollar country music industry. Nashville's success provides several important lessons, including the potential of creative industries for developing economies; the importance of private action to the development of creative industries; and the importance of copyright.

We then consider the popular music industry in Africa. Despite abundant talent and the existence of copyright law in most countries, there are no "African Nashvilles." We examine the challenges faced by the African popular music industry and offer a number of specific institutional reforms that could help spark the growth of the music industry and contribute to economic development in African countries. While we do not see this industry as a panacea for the difficulties of poor countries, it could be an encouraging first step, helping individuals and providing an economic and moral victory in a region greatly in need of such help.

copyright, intellectual property, Africa, Nashville, music