[iDC] Introduction / Ethical Copyright

James Grimmelmann james at grimmelmann.net
Mon Oct 19 00:17:19 UTC 2009

Greetings all,

I'm (belatedly) following Trebor's request to introduce myself.

At the conference, I plan to present some work I've done on the use of  
ethical arguments on all sides of the copyright wars.  The legal  
academy has gone remarkably far down the rabbit hole of economic  
analysis when it comes to intellectual property.  While ultimately,  
the law does need to be justified on grounds of overall goodness for  
society, and utilitarian economics does provide one way of asking how  
good particular institutions are for all of us, my beef with this  
scholarly way of framing the problem is that it's profoundly  
disconnected from how almost everyone other than legal scholars talks  
about IP, and particularly about copyright.  Even when we do break out  
of the utilitarian mold, it's often only to introduce equally  
bloodless "distributional concerns."  There's a kind of built-in  
irrelevance to the whole back-and-forth.

What struck me, as I was trying to come up with something to say to a  
roomful of IP legal scholars, was that advocates in the court of  
public opinion almost invariably framed at least some of their  
arguments in ethical terms.  Indeed, they appealed to one particular  
set of ethical frames -- reciprocity norms -- with remarkable  
regularity.  Even more interestingly, there are multiple, conflicting  
sets of reciprocity norms kicking around, some of which are deeply  
incompatible with each other.  Thus, for example, the movie studios  
tell us not to download films because it hurts poor Manny the  
stuntman, who just wants to be appreciated by the audiences he works  
so hard to please.  There's a norm of voluntary, marketplace exchange  
at work there.  Compare the "don't sue your customers" lines adopted  
by Downhill Battle -- which gives customers ethical standing _as  
customers_, and sees the use of lawsuits as a betrayal of that same  
norm of marketplace exchange.  And so on -- in the paper that grew out  
of this idea, and in the presentation I'll give based in part on the  
paper -- I also look at some of the ethical language used by free  
software advocates and Creative Commons.

It's a shtick I've used on law professors, and I think it gets its  
power there just because it's wacky and offbeat.  I'm very conscious  
that it's actually quite unsophisticated as ethical thinking or  
rhetorical analysis, let alone a serious consideration of the  
conditions under which the exchange and circulation of creative works  
takes place.  I'll be eager to see what this group makes of it.  I'm  
hoping some of you may point me to critical sources that I missed in  
my first go-round; and I look forward to seeing the ideas refracted  
through the remarkable range of perspectives Trebor has cultivated for  
the conference.  I also want to immerse myself for a bit in your very  
different ways of looking at the world; I find that the ideas that at  
first make me the angriest tend to be the ones that ultimately have  
the most to offer.

Now, a bit about myself.  I make my living as an intellectual  
arbitrageur, primarily between computer science and law.  I teach at  
New York Law School -- intellectual property, Internet law, and the  
like -- but before I went to law school I was a programmer.  I spend  
most of my time trying to explain to lawyers important facts about  
computer technologies and the people who make and use them, and the  
rest trying to bring important facts about law back to the computer  
folks.  For the most part, my method consists of hanging around  
interesting people, waiting for them to point out something that they  
regard as too obvious to be worth belaboring, then hastening to carry  
the insight over to other interesting people in a different field, for  
whom it's a surprising insight.

For the last year, I've been thinking a lot about the proposed  
settlement in the Google Book Search lawsuit, which is immensely  
complicated and perhaps of overriding importance for the future of  
books.  I've also written about Google more generally; about privacy  
and social networks; about Lessigian theories of law, code and  
architecture; and about virtual worlds.

With anticipation,

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