Copynorms: Copyright and Social Norms

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.

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