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Legal Consciousness of Copyright
In her book Digital Copyright, Jessica Litman remarked that, when
told the real law of
copyright, many people would reply "there can't really be a law that
says that. That would be
silly."1 Yet compliance rarely relies on the sanity or silliness of a
law. Instead, people learn of
the law and make their own judgments on whether or not to comply.
Rather than examining
opinions of the law when told, this paper attempts to examine what
people know about the law of
copyright and how that knowledge impacts their decisions of
compliance. Sociologists of law, in
looking at questions of knowledge and compliance, have developed a
theoretical framework
which they call "legal consciousness." The first section of this
paper will examine the legal shift
which has recently made individuals responsible for copyright law.
The second section will
explain the theory of legal consciousness and its theoretical
background. The third section will
present the results of a series of intensive interviews done with
individuals prior to the RIAA
suits about their knowledge of copyright. In the end it will be
argued that the lack of legal
knowledge in the case of copyright highlights the role of the courts
as well as media outlets in
the social construction of the law and its compliance.
Shift in Technology, Shift in Law
Over the course of the twentieth century, the invention and adoption
of home and office
copying technologies has brought about a change in climate. This
brief summary of copyright's
development in the last century will show that the focus of the law
has been on mass infringers
(traditional pirates), not on the mass public. This analysis will
frame my argument that there has
1 Jessica Litman, Digital Copyright (Amherst, NY; Prometheus Books,
2001), 244-245.
Legal Consciousness of Copyright 2
recently been an important shift in copyright law. The technological
development of file sharing
has pressed the problems of videocassette recording and photocopying
further. Rather than the
traditional piracy of one person violating copyright on a mass scale,
a great number of people are
now breaking the law on a smaller and less commercial basis. Given
the economic difficulties
this creates for information industries, a legal shift is under way
to target infringers of copyright
among the general public. This section will introduce the basics of
copyright under the 1976
Copyright Act and will briefly portray how the law has responded to
the climatic change. The
shift in emphasis from manufacturers to users in copyright case law
will frame the argument that
the knowledge and compliance of users of copyrighted works matters a
great deal under the new
legal regime.
The 1976 Copyright Act was the result of a long and arduous process
of revising the 1909
Copyright Act to account partly for the invention of new user-copying
technologies, along with
the expansion of media for information industries to distribute
content. In this long process, the
users of copyrighted works were only indirectly accounted for. Since
users were represented
primarily by library and education interests, many of the "fair use"
rules in the resulting
legislation directly relate to these institutional interests. Growing
from a rule in the common
law, fair use was examined during the crafting of the 1976 Act
primarily through a report on fair
use. This report, at Congress' request, listed eight potential areas
which had been addressed by
the courts to varying degrees: incidental use, review and criticism,
parody and burlesque,
scholarly works and compilations, personal or private or use in
litigation, news, and nonprofit or
governmental use.2 Despite the breadth of areas the courts had
previously determined as fair use,
2 Alan Latman, "Study No. 14: Fair Use of Copyrighted Works"
Copyright Law Revision. Studies prepared for the
Subcommittee on Patents, Trademarks, and Copyrights of the Committee
on the Judiciary, United States Senate, 86th
Congress, Second Session, pursuant to Senate Resolution 240,
Washington DC US Printing Office 1960, prepared
Legal Consciousness of Copyright 3
the report concluded that "the cases examined above [in the eight
areas] support the conclusion
that fair use is not a predictable area of copyright law."3 In the
end, it took 100 hours of closeddoor
conferences to complete the compromises necessary for the publishers,
authors, librarians,
and educators to agree on the rules. During these meetings a system,
very closely resembling the
enacted law, was resurrected from a 1964 revision bill.4
All the while, the arguments proposed by the librarians and educators
were grounded in
the idea that copyright exists not as a pure monopoly, but rather as
a means to the end of
promoting "the progress of science and useful arts." In their point
of view, copying was just as
necessary to reaching this goal (in teaching or educating the
public), as was a system of
copyright. This is arguably a laudable goal, but it does not exactly
represent the interests of
general copyright users. The rights granted through the courts under
fair use most closely track
the needs of users, yet while the courts are a venue where the rights
of users might be worked out
this mode of rights definition is less than ideal. The time and
expense of a court battle, in
addition to any uncertainty in the outcome, may lead people away from
testing their rights in
court. Further, litigation is an expensive prospect for someone who
has a limited interest
(financial or otherwise) in the outcome of the case. The presence of
some sort of group directly
representing the interests of users of copyrighted works may have
brought a different outcome to
the debates.
Since the 1976 Act, congress and the courts have had no choice but to
consider the role of
users in the copyright regime. Foremost, it has been the courts that
have had to consider
March 1958 in Nicholas Henry ed., Copyright, Congress and Technology:
The Public Record vol. 1 "The Formative
Years, 1958-1966" (Phoenix, AZ: Oryx Press, 1978), 41.
43-49.
3
4
Latman 49.
George Gipe Nearer to the Dust: Copyright and the Machine (Baltimore:
Williams and Wilkins, Co., 1967), 220-
221.
Legal Consciousness of Copyright 4
questions of fair use during this time. One of the first cases
following the 1976 Act which
represents an early effort to apply copyright to normal users is the
case of Sony v. Universal
Studios.5 The issue before the Court in this case was whether Sony's
Betamax videocassette
recorder (VCR) was a machine whose sole purpose was to help people
break copyright law
under the standard of "contributory infringement." After considerable
debate of whether any
kind of home video recording of copyrighted material was permissive,
the Court found that it
was entirely conceivable that VCRs could be used primarily for "time
shifting" (making a copy
for later viewing), which it considered to be an appropriate fair
use. This key question of
"contributory" infringement, where one acts as an agent who aids
others to break the law of
copyright, has repeatedly been an issue with consumer copying
technologies. This rule has been
tested by the expansion of the Internet, and perhaps most prominently
in the context of file
sharing.
Continuing the strategy of filing suits against manufacturers, A&M
Records, et. al. v.
Napster, involved the record companies' suit against the commercial
Internet peer file-sharing
program, Napster. 6 As in Sony, the court was asked to decide if
Napster was a contributory
infringer of the industry's copyrights. However, unlike Sony's
finding where time shifting was
found to be a fair use, the Court could find no such excuse in
Napster's favor. The Court found
that Napster's service allowed its users to directly infringe A&M's
copyrights, and therefore held
it as a contributory infringer, and ordered it to shut down its
services. Despite the force of public
opinion and technology, cases such as Napster have continued as other
file-sharing services have
emerged and been challenged in the courts. The similar results in
each case have sent the
message that peer filesharing is not permissible.
5
6
Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984).
A&M Records et. al. v. Napster, Inc. et. al., 239 F.3d 1004 (9th Cir. 2001).
Legal Consciousness of Copyright 5
Yet, in a seemingly contradictory opinion, MGM Studios v. Grokster,
the 9th Circuit
appellate court found that, like the Betamax video recorder,
filesharing software had legitimate
uses. The central question of the case was, "whether Defendants'
materially undisputed conduct
gives rise to copyright liability."7 The defendants were a group of
software manufacturers
(hereafter collectively referred to as "Grokster") who utilized two
Internet-based networks which
operated much differently from that of Napster.8 While Napster
operated as a conduit through
which two users' files would pass in a trade, Grokster used a
distributed system which allowed
users to trade without connecting through a centralized server.
Grokster provided the software,
but as was found, "If either Defendant closed their doors and
deactivated all computers within
their control, users of their products could continue sharing files
with little or no interruption."9
Both this distributed nature of each system's network, and the open
source Gnutella network
which StreamCast and Morpheus software operate on, removed control
from any single entity.
This made it difficult for MGM to prove the knowledge of users
infringing activity and material
contribution to the activity necessary to prove "contributory
infringement." Additionally, while
each company gained financial benefit from advertising revenue,
"vicarious infringement" could
not be proven due to the lack of control and ability of the software
manufacturers to monitor the
networks. This decision removed liability from filesharing software
providers and perhaps was a
key factor in bringing the recording industry to sue individual
filesharers, and in bringing the
Supreme Court to review this case.
Despite the result of Napster, the practice of filesharing on the
Internet has continued;
and the unfavorable Grokster decision brought the Recording Industry
Association of America
(RIAA) to file lawsuits against individual filesharers. On July 24,
2002 the Recording Industry
7
8
MGM Studios v. Grokster et. al. 259 F. Supp. 2d. 1029 at 1031 (2003).
The software at issue included: Grokster, Kazaa, StreamCast, Morpheus.
9 MGM Studios v. Grokster et. al., 1041.
Legal Consciousness of Copyright 6
Association of America (RIAA) subpoenaed Verizon, one of the largest
Internet service
providers (ISP), ordering it to release the name of someone who
allegedly downloaded 600
pieces of music over the Kazaa peer-sharing network (a Napster-like
system) in one day.10 This
was likely the first attempt to prosecute an individual sharer of
music on the Internet. After a
long court battle in which the subpoena was upheld and later struck
down, the Supreme Court
denied Certiorari leaving the subpoena void.11 Unsatisfied with the
results of the cease-anddesist
letters which the subpoenas enabled,12 the RIAA announced their plans
to file lawsuits
against individual filesharers on June 25th, 2003.13 This resulted in
"close to 1000" subpoenas
filed in the 4 weeks before July 28th, 2003.14 Currently, the RIAA
has filed thousands lawsuits
against filesharers (261 on 9/8/03,15 80 on 10/30/03,16 41 on
12/3/03,17 532 on 1/21/04,18 531 on
2/17/04,19 532 on 3/23/04,20 and has continued with approximately
500-750 suits nearly every
month since). In cases where a service provider's refusal to reveal
the real names of filesharers
have been upheld by the courts, the RIAA has resorted to "John Doe
Lawsuits" based on an IP
Address (a string of numbers identifying a computer's connection to
the Internet).21 The industry
10 Declan McCullagh, Music Body Presses Antipiracy Case, C-net
news.com, (Aug 21, 2002) at
11
12
http://news.com.com/2100-1023-954658.html.
2004 U.S. Lexis 6700, October 12, 2004.
AP. "Music Traders To Be Warned." New York Times 19 June 2003, Late ed.: C6.
13
14
15
16
Lynnette Holloway. "Recording Industry to Sue Internet Music
Swappers." New York Times 26 June 2003, Late
ed.: C4.
Amy Harmon. "Subpoenas Sent to File-Sharers Prompt Anger and
Remorse." New York Times 28 July 2003, Late
ed.: C1.
Amy Harmon. "The Price of Music: The Overview; 261 Lawsuits Filed on
Music Sharing." New York Times 9
September 2003, Late ed.: A1.
AP. "Record Industry Files 80 More Lawsuits." New York Times 31
October 2003, Late ed.: C6.
17
18
19
20
Reuters. "Music Industry Files More Suits." New York Times 4 December
2003, Late ed.: C9.
John Schwartz. "Music Industry Returns to Court, Altering Tactics on
File Sharing." New York Times 22 January
2004, Late ed.: C1.
AP. "More Downloading Suits by Recording Industry." New York Times 18
February 2004, Late ed.: C3.
John Schwartz. "More Lawsuits File in Effort to Thwart File Sharing."
New York Times 24 March 2004, Late ed.:
C4.
21 Katie Dean. "RIAA Strikes Against Traders." Wired News 21 January
2004, available online at
http://www.wired.com/news/digiwood/0,1412,61989,00.html, accessed 6 June 2004.
Legal Consciousness of Copyright 7
hopes that names would be revealed during the discovery phase of an
actual lawsuit.22 In a
number of cases, users have settled their cases and paid the RIAA
some amount less than
statutory damages (it has been alleged that in a number of cases
dealing with youth, this amount
has been their entire life's savings).23 The civil actions, however,
have not been matched to the
same degree of criminal action against filesharers.24 Certainly,
these actions have had both the
intention and effect of raising awareness and compliance with
copyright, yet the question of
individuals' understanding of actual copyright law remains unclear.
This history clearly shows that, while users were only marginally
considered in the earlier
law of copyright, they now are being held accountable for it. Given
the complexity of fair use, it
is likely that the knowledge of the average user of copyrighted works
may be slight. It also may
be argued that the RIAA suits are a form of "public education" on the
law of copyright, which
clearly now applies to general users and copiers of copyrighted
works. While there is proposed
legislation to deal with these issues, the question of user knowledge
of copyright law has
inarguably become a major issue to address.25
Studying Public Perceptions of Law
The study of legal consciousness grew out of both a theoretical
background of the social
theory of the power of law, and practical legal analyses of how the
law works in society. At the
risk of oversimplifying the philosophical history, a brief overview
will be given of the social
theories of Gramsci, Bourdieu, Foucault, and de Certeau. It will be
clear that each place an
22
24
25
John Schwartz. "Courts Limit Efforts to Unmask Music Swappers." New
York Times 20 December 2003, Late ed.:
A1.
23 Amy Harmon. "New Parent-to-Child Chat: Do You Download Music?."
New York Times 10 September 2003,
Late ed.: A1.
John Schwartz. "States May Be Aiming at Web File Sharing." New York
Times 16 March 2004, Late ed.: C9.
Proposed legislation includes the now tabled Piracy Deterrence and
Education Act of 2004, to deal with educating
the public on copyright and to deter piracy, and the Digital Media
Consumers' Rights Act of 2005, to enforce the
proper labeling of copy-protected compact discs. More information at
http://www.copyright.gov/legislation/.
Legal Consciousness of Copyright 8
emphasis on the power of individual's actions over the power of the
state. This section will
conclude with a description of the background of practical studies of
law in society.
Some of the theoretical roots of legal consciousness can be found in
large-scale social
theory. First, Antonio Gramsci, developed the idea of hegemony, a
general routinized
acceptance of dominant views and social norms, when combined with the
force of law, results in
enhanced compliance with the law.26 Additionally, Pierre Bourdieu
theory of habitus, posits that
history conditions individuals to accept and reproduce the social
rules which dictate and limit
acceptable behavior.27 These theories of how individuals interact
with powers such as law have
close ties to legal consciousness' examination of how law is socially
constructed.
Perhaps the most influential work on legal consciousness is that of
Michel Foucault. One
of Foucault's major projects was developing a theory of power along
two planes: control and
discipline. Power by control can either be through direct force, such
as that of the police or
army, or by an indirect force such as organization. Foucault thought
rather that the law worked
better when it was also accepted as the norms or "discipline" of the
people which is "interwoven
[like capillaries in the body] with other kinds of relations
(production, kinship, family, sexuality)
for which they play at once a conditioning and conditioned role."28
Note that, by highlighting the
importance of this democratized or distributed power, Foucault
deemphasizes the power that is
wielded by the state through law.29 Finally, The work of Michel de
Certeau has extended the
work of Foucault, and legal consciousness research relies heavily on
his ideas on "everyday life."
26
27
28
Antonio Gramsci, Joseph A. Buttigeg and Antonio Callari tr. Prison
Notebooks, (New York: Columbia Univ.
Press, 1992, original publication 1975).
Pierre Bourdieu, Richard Nice tr., Outline of a Theory of Practice
(Cambridge: Cambridge Univ. Press, 1977,
original publication 1972), 85.
Michel Foucault "Power as Knowledge," in Charles Lemert Social
Theory: The multicultural and classic
readings, 2nd ed. (Boulder, CO: Westview Press, 1999), 475. Michel
Foucault Power/Knowledge: Selected
interviews & other writings, ed./tr. Colin Gordon (New York: Random
House, 1977, collection published 1980),
142.
29 Alan Hunt, "Foucault's Expulsion of Law: Toward a Retrieval," 1992
Law and Social Inquiry 17 at 36.
Legal Consciousness of Copyright 9
The basis of de Certeau's theory is that, much like Foucault, power
comes from habits formed by
going along with social norms, but also notes that these norms are
subject to resistance.30
Theoretically, the study of legal consciousness grew partially out of
a desire to "retrieve"
Foucault's "expulsion" of law. Allan Hunt, citing the work of Niklos
Poulantzas as his
inspiration, points out that Foucault's emphasis on decentralized or
capillary power
deemphasizes the potential power that a state wields in its law
making abilities and that it "lacks
a conception of either ideology or hegemony." 31 In this way, he
hopes to "retrieve" law, so that
centralized-law and capillary-discipline are not seen as
oppositional, but rather as
complimentary. He explains this "team" of law and discipline
negatively, where power is not
completely derived from "'more law' and 'more regulation,'" while
also not derived from norms
and social sanctions.32
Legal consciousness' roots in the practical studies of law in society
can be traced to a
variety of sociological studies, frequently with a goal of rating an
individual's ability to engage
the legal system. Perhaps the most relevant earlier study of legal
culture examines the "efficacy
and meanings of laws and legal institutions in a given culture. It
determines which laws will
'penetrate' into society and which ones will not."33 Lawrence
Friedman proposed in an early
article on this topic that some laws are easily enforced because they
are "habitually" accepted by
the culture (for example, individuals are generally good about paying
their taxes).34 On the other
hand, there are certain laws (his example is laws against adultery)
which would require great
30 Michel de Certeau, Steven Rendall tr., The Practice of Everyday
Life (Berkeley, CA: Univ. of California Press,
31
32
33
1988, original publication 1984), xi.
Alan Hunt, "Foucault's Expulsion of Law: Toward a Retrieval," 1992
Law and Social Inquiry 17 at 36.
Hunt 36-37.
Lawrence M. Friedman, "Legal Culture and Social Development," 1969
Law and Society Rev 4 at 29. See also:
34
Engel, 127.
Friedman 42.
Legal Consciousness of Copyright 10
resources to enforce and may cause public dissatisfaction. He briefly
contrasts this idea, which
he calls the law's "penetration," to the concept of "participation,"
which is the degree to which
"refers to the role of members of the general public [have] … in
making and carrying out law."35
In other words, penetration exists as the degree to which law has
been accepted by a population,
while participation characterizes the degree of a publics' engagement
in the legal system. It is
also significant that a great deal of legal culture research often
specifically examines images of
law in popular media (television shows, movies), as well as in
culture generally. In one example,
Stewart Macaulay argues that, since few people spend time interacting
with or reading the law,
our culture has a great effect on how we conceive of the law, and
make choices about whether or
not to comply with it. He specifically points to our system of
education, our entertainment (or
one could also argue media in general), and sports as sites of
development of legal culture.
Legal consciousness extends these understandings by extending this
framework into two
possible scenarios in which meaning is made. On one end, the
instrumental view concerns itself
with law's effectiveness.36 Its proponents argue that while law
exists outside of a social
situation, it still has the potential to make (or not make) a
difference.37 The constitutive approach
departs from the idea that law is simply an external force, but
instead accepts that the law is
accepted into our social lives and shapes how we view the world.38
While it has been suggested
that there is middle ground between these approaches, the work of
Patricia Ewick and Susan S.
Silbey has become the most widely cited work in the field of legal
consciousness.
35
36
37
38
Friedman 44, emphasis added.
Austin Sarat and Thomas Kerns, "Beyond the Great Divide: forms of
legal scholarship and everyday life" Law in
Everyday Life (Ann Arbor: Univ. of Michigan Press, 1993), 23.
Bryant Garth and Austin Sarat, "Studying How Law Matters: An
Introduction," How Does Law Matter?
(Evanston, IL: Northwestern University Press, 1998), 2.
Garth and Sarat., 2.
Legal Consciousness of Copyright 11
Patricia Ewick and Susan Silbey work in The Common Place of Law, in a
survey of
individuals, examines how people conceive of the law in their
experiences with the legal system.
Their method was to subject 430 people, selected for diversity in the
four New Jersey counties,
to an intensive interview lasting between 1.5 and 5.5 hours. They
note that, "rather than
interview only persons with legal experience, or persons found within
some legal setting such as
a welfare office, law firm, mediation program, or local court, we
sought a broad representative
sample."39 This is an important methodological point: rather than
focus on individuals who are
currently engaged in the legal system, Ewick and Silbey chose to
instead draw from a large
sample to search for broader social themes. Their chief argument is
that the "commonplace
operation of law in daily life makes us all legal agents insofar as
we actively make the law… ."40
From this definition, it is clear that they believe law largely
socially constructed (read:
constitutive). While this largely ignores the instrumentalist
approach previously discussed, the
clarity of their definitions and theory serve as a good starting
point for a study of legal
consciousness.
Ewick and Silbey examine three "stories of legality" which serve as a
basis for their
research. The first is legality as the "objective realm of
disinterested action," which refers to law
as an imposition from outside of normal life.41 This includes
experiences of the law where one
must appear "before" the law in obedience to its rules. The next
story is legality as a game,
which portrays law as a site for different players to compete for
their desired objectives. Here
people use the law, or act "with" the law, in attempts to resolve
conflicts in their interests. The
last story relates to law's ability to exert power, which some might
see as being arbitrary as
39 Patricia Ewick and Susan Silbey The Common Place of Law: Stories
from Everyday Life (Chicago: Univ. of
40
41
Chicago Press, 1998), 23.
Ewick & Silbey 20.
Ewick & Silbey 28.
Legal Consciousness of Copyright 12
opposed to objective. In these last stories, individuals work to
resist legal forces ("against" the
law) which they believe are working outside of the realm of socially
acceptable practices or
outcomes. These three conceptions of legality serve to shape their
results, where they explain
each story in the context of their research.
Ewick and Silbey conclude that legal consciousness, to avoid treating
it as either growing
out of individuals' opinions or as a result of existing social
structures, can be best understood in
terms of cultural schemas.42 These schemas explain legal
consciousness not as a state of mind,
but as a combination of an evolving set of "cultural codes."43
Borrowing from the work of
William Sewell, the concept of cultural schemas allows Ewick and
Silbey to understand
consciousness as something that might be normatively coercive, but
also as an important part of
how people make sense of their world.44 This brings them to define
legal consciousness in terms
of "participation in the process of constructing legality."45
Further, legal consciousness exists not
as a state of mind, but as a part of what people do and say in a
process of "publicly exchanged
understanding." In other words, as a society we actively work to
participate in law and to make
it work in both a procedural and communicative fashion. This social
interaction with the law
through evolving cultural codes can be seen to some degree in public
conceptions of copyright.
Research Questions
RQ 1: Given the shift in the law towards making users responsible for
copyright, what do they
know of the law?
RQ 2: What factors, other than law, affect knowledge of the law and
decisions (not) to comply
with copyright?
RQ 3: How do individuals acquire knowledge of copyright and how does
this affect their
consciousness?
42
43
44
45
Ewick & Silbey 34-38.
Ewick & Silbey 39-40.
Ewick & Silbey 41.
Ewick & Silbey 45.
Legal Consciousness of Copyright 13
Examining Perceptions of Copyright – Methods
To understand the legal consciousness of copyright, this project
undertakes a series of indepth
interviews to gauge the understanding of actions based upon the law.
In many ways, the
methods of this project are based on those of Ewick and Silbey whose
work is described above.
Following the description of my sampling and interviewing methods, a
brief discussion of the
strengths and weaknesses of this methodology will help frame my
results and inform future
studies.
The study described here consisted of in-depth interviews of 18
individuals of varying
ages during the months of July and August, 2002. The subjects were
selected based on
convenience sample by using a "friend of a friend" or snowball
method. Consequently, the
interviewees were at least one "degree of separation" away from the
interviewer, which
hopefully increased the honesty of their answers and did not give
them the impression that they
were doing the interviewer a favor. The connections between the
interviewer and interviewee, as
shown in table one, were from a number of sources: former employers,
church, family of
coworkers with my family, neighbors, and friends of friends.
Interview Sources
No. Subjects Source
Family Coworkers 2
Church 2
Former Employers 3
Neighbors 4
Friends of Friends 7
Table One.
In addition, these connections often snowballed as I interviewed the
parent or child of one of an
interviewee to increase the generational scope of the study. This
method can be described as a
purposive sample, as it was selected based purely on what I thought
the sample should be. As
Legal Consciousness of Copyright 14
Babbie explains, this study than can be understood to function as a
"pretest," and does not focus
on a specific group, and therefore is not representative of any group
or population.46
While the interviews were not representative, some attempts were made
to diversify the
sample. The method of sampling presented some difficulties in
achieving this goal, but the
interviewing of parent/child pairs gave some diversity on the
demographic that was a primary
focus of this study: age. Table two shows the nearly even division
between each of the four age
groups, while table three shows that gender was also reasonably diverse.
Interview Gender
Female
8
Male
10
Interview Age Groups
Age No. Subjects
20 4
20-30 6
30-50 4
50+ 4
Table Three. Table Two.
Unfortunately, race was one demographic that was not adequately
diverse, as all interviewees
were white except for one Asian and one Hispanic. This is especially
problematic, as the digital
divide has been shown to be broken down along racial lines.47
Similarly, all of the subjects were
members of the middle or upper-middle class, another characteristic
that has been shown to be a
factor in the digital divide. The fact that all interviews took place
in Minnesota may add an
additional shortcoming in the diversity of the respondents'
backgrounds. While further studies
could rectify this problem, the fact that this study was not
explicitly performed to be
representative hopefully alleviates some of this worry. Yet, with no
meaningful population to
attribute the results to, the findings cannot be taken as a cause of
action but rather as an
opportunity for further study.
46
47
Earl Babbie, The Practice of Social Research, 8th ed. (Belmont, CA:
Wadsworth, 1998), 195.
Pippa Norris, Digital Divide: Civic Engagement, Information Poverty,
and the Internet Worldwide. (Cambridge:
Cambridge University Press, 2001), 68-72.
Legal Consciousness of Copyright 15
The protocol of interview questions consisted of a progression from
very specific
inquiries of the subject's copying habits, to more general questions
about his or her knowledge
and feelings about the law.48 The first group of questions inquired
about the subject's copying
habits in various media (for example, by photocopier or computer).49
Questions of this nature
gauged the type and frequency of copying that one engaged in. The
next section proved to be the
most revealing in terms of the legal consciousness of copyright: the
morals of, or normative
feelings about, copying. These questions asked the interviewee to
express his or her personal
beliefs of what kinds of copying are right and wrong as well as what
was informing his or her
opinions.50 The following questions asked about the subject's
feelings of the roles and rights of
the players in copyright: producers, publishers, and consumers.
Depending on responses from
the previous section, the questions were phrased to ask why the
interviewee thought that these
creative interests did or did not deserve some level of protection
under copyright. The next
section inquired about the interviewee's specific knowledge of
copyright, which returned to his
or her exact legal understanding or consciousness of the law. These
questions asked the
interviewee to state what he or she knew the law of copyright to be.
The survey concluded with
a few questions about the relation of copyright to society, or how
the subject thought copyright
affected people in their daily lives. The final question asked why
the interviewee thought there
should, or should not be a law of copyright.
The protocol was designed to gradually build from easily
understandable questions about
one's own habits to more individualistic, but perhaps deeper or more
thought provoking,
questions about one's own morals and feelings about the law. The
survey finally directed the
48
49
50
The protocol appears below in Appendix 1.
Section headings in the protocol appear in italics.
To clarify: these questions aimed to discover if their understanding
of the law and actions were based on either the
law [instrumental] or other forces in society (economics, social
sanctions, etc.) [constitutive].
Legal Consciousness of Copyright 16
subject to explain her understandings of the outside world, including
perceptions of other people,
the law, and the media industry. By examining both an individual's
perceptions of themselves as
well as the outside world, hopefully any existing consciousness of
the law of copyright will
emerge.
The interviews were carried out mostly in individuals' homes and
restaurants, and each
was recorded. In most cases the interviews followed the protocol, but
structure was not absolute
and the questions were asked more conversationally than strictly
following the protocol wording.
As might be expected, the structure of the interview depended greatly
on the subject's
willingness to volunteer information unprompted by the specific questions.
Following the suggestion of Lofland and Lofland, each interview was
transcribed for
analysis.51 This process provided both a good review of the
interviews, as well as an easily
viewable and searchable record of the discussions. The transcripts
were then analyzed by the
interviewer to determine labels for the various common responses.52 A
total of 45 key phrases
and variants were identified via this inductive method. After coding
each transcript, a table was
made to determine both which responses occurred most often and which
appeared to be
covariables.
In addition to some of the demographic weaknesses addressed above,
there are a few
general weaknesses in the construction of this study which must be
again stressed. First, it must
be stressed that the sample in this study was purposive, and
therefore not generalizable to any
wider population. Related to this problem is the fact that, at least
in the depth interviews, no
community was identified. This, and the limited number of
respondents, further confines the
51 John Lofland and Lyn H. Lofland, Analyzing Social Settings: A
Guide to Qualitative Observation and Analysis,
52
3rd ed. (Belmont, CA: Wadsworth, 1995), 87-88.
Anslem Strauss and Juliet Corbin, Basics of Qualitative Research:
Grounded Theory Procedures and Techniques.
(Newbury Park, CA: Sage, 1990), 63-72.
Legal Consciousness of Copyright 17
ability to generalize this study. Still, this study was crafted to
merely begin to illustrate a number
of types which can enhance our understanding of how copyright works
in the minds of "average"
users of copyrighted material and the theory of legal consciousness.
This framework has the
potential to be applied to future research. In having this specific
goal, hopefully any weakness in
the methods of this study will be mitigated.
Examining Perceptions of Copyright – Results
The results of the interviews appear to show that there is a very
limited consciousness of
copyright which is defined largely by terms other than the law. The
variations of legal
knowledge and moral guidance lead to the ability to categorize legal
consciousness of copyright
into four distinct types. A presentation of the results within this
framework of the types of legal
consciousness will follow a few results that were generalizable to
the majority of participants.
While the legal consciousness types distinguished the participants
from one another, a
few generalizable results were apparent. First, 65% of the
participants mentioned in some
specific way that they complied with the law. Also, there appeared in
nearly every instance to be
some acknowledgement of boundaries of the law, even when the
participant admitted to having
little legal knowledge. In one common example, a 25-year-old MBA
student who admitted to
not thinking much about copyright, expressed a difference between
copying for profit and for
personal use. These findings of an explicit acknowledgment of
compliance with the law, and a
distinction between personal and for-profit copying might show that
the law holds some
importance to individual definitions of or compliance with copyright.
One of the primary interests of this project was finding how the law
figured into the
consciousness of and compliance with copyright. In comparing moral
and legal individual
Legal Consciousness of Copyright 18
frameworks, four categories appeared which in many ways mirror the
previous legal debates on
copyright with an added moral twist.53 The categories are:
1. the positives, who define their actions legally, yet also comply
with ethics;
2. the qualified legals, who recognize the position of the law, but
qualify their action or the
action of others for a moral or other non-legal reason;
3. the qualified ethicals, who largely do not know much about the
law, which causes their
actions come to be defined largely by their ethics in addition to
other non-legal
constraints; and
4. the negatives, who in their varying knowledge of the law have
declared an ethical or legal
aversion to the ideals of copyright.
Legal Consciousness Types
Type Number
Positive 2
Qualified Legal 6
Qualified Ethical 6
Negative 3
Table Four.
While the positives were not a large group (there were 2), their
decidedly legal defining
of the copyright problem merits examination as what might be called
the traditional vision of
legal consciousness. However, he was quite able to move beyond this
ethical frame to
differentiate the legal and moral issues: "That's why you've got to
decide whether it's legal or
not, and if it is barely legal, it's not something you can be caught
or prosecuted for, now you've
got to decide whether it's ethical or moral."54 In this case and the
others like it, the culmination
of knowledge and feelings about the law in addition to ethical
feelings and reasons for
compliance all pointed towards their opinion that intellectual work
deserves a high degree of
protection and that they largely carried these feelings out into action.
53 In some ways, this framework mirrors what others have termed the
distinction between copyright "optimists" and
54
"pessimists."
Interview by author no 35. (Each interviewee was given a number to
maintain a consistent report of who is being
quoted in each case.)
Legal Consciousness of Copyright 19
A slightly larger group (6 individuals) was those who for the most
part complied with the
law, yet for alternating legal and ethical reasons. This often
included justifications for behavior
which might not have otherwise fit in either framework. The legal
qualified group knew the law
to some degree, but yet did not always comply with what they knew for
various reasons. In one
example, a church musician admitted to having a briefcase full of
illegally copied music, which
was qualified by the fact that the music was copied for volunteer
work. This seemingly nonlegal
qualification was contrasted by a later comment about obtaining
copies of photos that were
taken in a chain studio. She remarked,
the first thing that I think of is they want me to come back to their
studio because they
want me to spend my money there, and I don't see it as so much of an
artist thing, and
maybe that's not fair, maybe I'm not giving the photographer credit,
but come on ... it's
Proex. … is this [policy] protecting the photographer's work, or is
this, 'we want you to
bring your business back here.'55
Each of these statements shows less than exact compliance with the
law, but also an
acknowledgement of both the law's logic and values which are
characteristic of this type.
Another large category of interview responses was the
ethical/qualified (6 individuals).
This type was largely ignorant of the law, yet often complied with
the values of copyright for
ethical reasons. A number of responses in this group confused the
rules of plagiarism with the
law of copyright. In another example, a 42-year-old mother and
manufacturing-liaison who
acknowledged a difference between the law and ethics, responded to
the question about the
difference between private and business copying in a moral way:
Again I think that there's a moral issue there, because I think that
then you're taking and
making a profit off of somebody else's work again, so. And if you
can't, if you can't
base your actions on something like that, then I guess I'd question
the ethics of the
business person.56
55
56
Interview by author no. 80.
Interview by author no. 8.
Legal Consciousness of Copyright 20
In this way, the individuals most often appeared to feel they had a
consciousness of copyright,
yet their ignorance of the law or justifications reinforced their
actions. In another example, a 25-
year-old office worker struggled with the issue of copying something
in a letter:
… if I'm going to write you a letter I don't think I need to cite it
in there where the
information actually came from, but, I don't know I guess I have the
right to use it … I
understand the line has gotta be drawn, and where is the line I guess
I don't really know.57
While she admits to being ignorant of the law, she attempts to
formulate a balance between what
she thinks is right and what is practical. The law appears in these
distinctions at some level, but
in the absence of knowledge of what the law dictates, ethical
reasoning takes over.
A few people who admitted to having reservations about the law or
ethics of copyright fit
well into the group of negatives (3 individuals). Surprisingly, this
group still expressed some
sort of boundaries of what the law of copyright should be in
acknowledgment of some inherent
normative values. However, the vast qualifications of action and
negative view of the current
law warranted placing them in a separate category. In many ways, the
responses of individuals
in this group reflect many of the reasons (or excuses) for violating
copyright; while they are able
to frame an issue in a very specific way, there is usually some
extra-legal factor which prevents
compliance with what they understand the law to be. In one case, a
22-year-old college student
remarked that she believes "copyright protects the rights of the
person that did it, like the artist's
talent," yet later qualifies this value judgment: "but at the same
place, from my vantage point I
don't make a million dollars. I can't afford the $20 for a CD."58
While this group offers a
number of justifications for their actions in violation of copyright,
their knowledge of the basics
of copyright was surprising.
57
58
Interview by author no. 18.
Interview by author no. 46.
Legal Consciousness of Copyright 21
In the vast majority of cases, justifications for breaking the known
law of copyright or
norms against copying were given arguably to avoid cognitive
dissonance. It would appear that
this occurred for both decisions of law and ethics. While economic
justifications were by far the
most common, also acknowledged were: the lack of a fear of
punishment, the amount of time
involved in complying or not complying, availability of works, and
the bundling of wanted and
unwanted works together on one package. Each of these justifications
is important because they
work into a more complete understanding of how individuals'
consciousness of copyright works
in concert with their actions.
Analysis
The results of the interviews indicate that the lens of legal
consciousness incompletely
explains consideration of copyright. Instead, there are a host of
factors outside of the law which
appear to ultimately affect the actions individuals take, whether in
compliance with or against the
law. While it is still maintained that the law does matter to some
degree, this section will
examine what might affect action outside the realm of the law. A
brief analysis of the
implications of the lesser impact of law will be given in comparison
to both an economic
weighing and moral reasoning.
Recall that the four proposed legal consciousness of copyright
"types" were broken down
based on the basis of what were influencing factors on their opinion
of, and actions relating to,
copyright law. The "positives" and "negatives," due to their greater
knowledge of the law, came
to define their feelings in legal terms. Whether or not the law was
ultimately the force behind
their actions, this defining in legal terms warrants emphasizing that
to at least some people a
consciousness of the law is an important factor. However, for the
other two types, "qualified
Legal Consciousness of Copyright 22
legal" and "qualified ethical," the law plays a greatly minimized
role. For this reason, it is
important to consider some models outside of the law to account for
these findings. I propose
that two such categories are of primary importance: economic and ethical.
A traditional economic analysis of copyright, rather than focusing on
people, focuses on
costs and options. However, in some ways this type of analysis might
lend itself to some insight
on the "common sense" of consumers. In his analysis of the economics
of copyright, Richard
Watt examined the components of copyright and how the piracy of
"cultural" intellectual
property in how it affects individual and social welfare.59 A key to
understanding copyright
economically is the distinction between the work that is protected
and the medium of delivery.
The protected work is a "public good," which can be used by one
without subtracting the value
from another. This work, however, requires a "delivery good" (or
medium) in order to be
consumed; it is the analysis of delivery goods which Watt finds most
important, despite his
opinion that, "copyright law is designed to protect intellectual
property, not particular modes of
delivery."60 He finds that a delivery good enhances the value of a
copyrighted work, but this
conclusion is questionable in an age where the copying of a work
(regardless of delivery good) is
increasingly easy. Yet, it appears that in this project, the
intellectual property is given less value
than the delivery good. While one might not feel conflicted about
downloading a song from the
Internet, they quite likely would not steal a CD from a physical
store—nor would they equate the
two actions. It is possible that for some, the realization of the
disconnect between the difficultto-
copy physical object and the actual protected work (which can easily
be copied in a digital
world), factors more prominently than the law.
59
60
Watt, Richard. Copyright and Economic Theory: Friends or Foes?
(Cheltenham, UK: Edward Elgar, 2000), 1.
Watt, 5.
Legal Consciousness of Copyright 23
An additional perspective can also be gained through a moral or
ethical analysis. It was
clear that the interviews rarely showed the legalistic kind of moral
reasoning expressed by Kant's
Categorical Imperative. Kant believed that golden rules (or laws)
could guide action so that one
could "Act only on that maxim whereby you can at the same time will
that it should become a
universal law."61 This departure from strictly rule-bound reasoning
instead supports a hierarchy
much like Lawrence Kohlberg's conception of moral development.
To Kohlberg, there are six moral stages which are grouped into three levels.62
Follow own immediate interest
Live up to others' expectations
Follow agreed upon social duties
"greatest good for greatest number"
Self-chosen ethical principles
Level Stage Motivation
1. Preconventional 1. Heteronomous Morality Avoid punishment
2. Individualism
2. Conventional 3. Relationships
4. Social System
3. Postconventional 5. Social Contract
6. Universal Principles
It is thought that the levels correspond to the "types of
relationships between the self and
society's moral rules and expectations."63 In this study of legal
consciousness, the number of
"preconventional" and "conventional" moral responses were noteworthy.
Therefore, it is clear
that reasoning in terms of not fearing punishment or justifying
action in one's own interest is
operating from the preconventional perspective where rules are seen
as "external to the self."64
Conversely, reasoning in terms of being fair to artists or acting as
a good consumer appears to
follow the conventional perspective where one has identified and
internalized social rules. Little,
if any, postconventional standpoints were given. These "higher"
ethical motivations, much like
Kant's ideal or that of the rule of law, might have been apparent had
a stronger legal
61
62
Immanuel Kant Groundwork of the Metaphysic of Morals, trans. H.J.
Paton (New York: Harper Torchbooks,
1964), quoted in Clifford G. Christians, et. al., Media Ethics: Cases
and Moral Reasoning (New York: Longman,
1987), 13.
Anne Colby and Lawrence Kohlberg. The Measurement of Moral Judgment
vol. 1 "Theoretical Foundations and
Research Validation," (Cambridge: Cambridge University Press, 1987),
16-17. Table adapted from pp. 18-19.
63
64
Colby and Kohlberg 16-17
This was characteristic of both of the "qualified" types.
Legal Consciousness of Copyright 24
consciousness of copyright been found. Instead, preconventional
motivation was present where
individuals had no fear of punishment, or may have been acting in
their own immediate interest.
Despite copyright's being a legal issue, the framework of moral
development may fit the
problem in a more illuminating way than legal consciousness.
While each of these alternative models may be supported by both my
project and the
survey research, it should be emphasized that the law arguably plays
a role in the problem, if
only to a limited degree. First, the finding of an awareness of
copyright law supports the idea
that the law may serve at least as a definitional starting point. If
one knows generally that there
is a law which dictates that copying is wrong, actions will be at
least partially guided by this
knowledge whether or not there are economic or moral justifications.
This works in concert with
the second factor: degree of legal knowledge. Put simply, the more
that is known about the law,
the more action will become defined in terms of the law. Perhaps as
more people become aware
of the law, possibly through media or social networks, there is a
greater chance that action will
become increasingly defined by law. A high degree of "penetration,"
as defined by legal culture
studies, may be a crucial element to finding a consciousness of law.
With this re-emphasis on
the role of law in hand, the implications of these alternative
explanations must still be
considered.
Public Legal Education
The fact that these interviews were conducted before the Recording
Industry Association
of America filesharer lawsuits occurred may very well be a factor in
explaining why there was so
little knowledge of copyright law. Yet this highlights the
possibility that the recording industry
suits and media campaigns are one way in which the public is learning
about the law. In this
study, while some participants displayed a surprising amount of legal
knowledge, the majority of
Legal Consciousness of Copyright 25
respondents arguably did not know enough to be reasonably responsible
for their actions under
the law. Still, the possibility of the law not mattering as much as
we might think (or wish) may
hold dire implications. The fact that issues other than the law, like
economics and morals,
appear to inform public compliance with copyright may show that the
law is more socially than
doctrinally constructed. At the very least, it brings the question of
what the role of institutions,
like media organizations or the Supreme Court, play in the
construction of legal consciousness.
While this project was not able to answer this question, as media was
not given as a place of
legal education, this could be a valuable avenue for future research.
Perhaps a replication of this
project following the recent RIAA suits would help solve this
question of how knowledge and
compliance have (and maybe have not) increased. The complexities of
the legal consciousness
of copyright, given the shifts happening in technology and law, must
be considered if compliance
is to be expected. If copyright is to return to its constitutional
ideal of "promoting progress,"
while still providing creators protection in the digital age, it is
essential that the law be clear in
the minds of those responsible for it.
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