Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law
Mark F. Schultz
Southern Illinois University School of Law; George Mason University Law School Center for the Protection of Intellectual Property
Berkeley Technology Law Journal, Vol. 21, p. 651, 2006
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.
Number of Pages in PDF File: 78
Keywords: copyright, social norms, norms, reciprocity, behavioral economics, file sharing, filesharing, peer-to-peer, p2p, jambands, jam bands
JEL Classification: K42, O34
Date posted: December 6, 2005