Yesterday I attended a program Leveraging Your JD in Today’s Economy put on by Santa Clara University School of Law.   At the program I reconnected with one of the presenters Shane Lunceford.  Shane remembered that I was an undergraduate Rhetoric major and recommended an article he and his brother Brett recently wrote for the Northwestern Journal of Technology and Intellectual Property.  The article, entitled Meh. The Irrelevance of Copyright in the Public Mind, considers how rhetoric affects the public perception of copyright law and how the music industry must change the discourse to gain public support and decrease infringement.

s5-1The article highlights an important part of law and society that is often over looked: without public support for a law the law will not be obeyed.  To demonstrate this point the authors describe a stretch of road in Las Vegas

it is not uncommon to see motorists on Maryland Parkway driving at 60 MPH suddenly drop their speed to 15 MPH once they enter a school zone … One part of this equation is legal—increased enforcement of the laws and stronger punishments. However, the more important reason for adherence to the speed limit in this instance is rhetorical—citizens needed a reason to believe in the law. Motorists believe in limiting speeds in school zones because they wish to avert tragedy and, more importantly, they believe that by obeying the speed limit they may realistically prevent accidents involving school children. Thus, they choose to obey one speed limit, while breaking the speed limit on either side of the school zone, despite the fact that the economic incentives are similar in each case.

The example and analysis clearly demonstrate the importance of public perception of a law on whether it is obeyed.  The article investigates this concept in light of copyright law in the music industry. Public perception of copyright law in music begins with the RIAA.  As has been repeatedly pointed out by IP enthusiasts the RIAA’s strategy of lawsuits has resulted in an extremely poor public perception problem.  The authors point out how the media’s framing of the lawsuits against roommates, students, and single parents has influenced the public’s view of the RIAA’s legal tactics.

The article goes on to suggest that

Editorial Cartoon, by Patrick Corrigan

Editorial Cartoon, by Patrick Corrigan

rather than attempting to change the law in order to change the citizen, perhaps it is time to begin looking at the citizen to see why he or she does not abide by the law. Citizens need reasons to obey laws that transcend fear of punishment; this is why the public conception of the music industry matters.

The authors point out a number of reasons why the public has not internalized copyright law.

  • Perceived low chance of being caught because “they can’t catch everyone”
  • View that content should be free
  • Perception that since time shifting in video is legal (Broadcast to VCR/DVR) than music should be too (Radio to Computer/MP3 Player)
  • Sense of identity with music to the point where it is a part of one’s identity (and therefore can’t be owned by someone else)
  • Confusion around copyright law and what is fair use

In my opinion one of the most important aspects of public perception of copyright is how the public is used to interacting with the content.  The authors describe how through radio music has been delivered to the public free of charge.  While people are used to paying money to go see a movie and even paying their cable bill to watch tv, radio has been allowing the public to listen to music for free since the early 1900s.  Furthermore between channel scanning and call in requests people are used to being able to hear the music they want to hear at any time.  Just as I have previously argued, the authors suggest that one way to overcome people’s accustom to getting music for free is to add-value.

The authors conclude by hypothesizing that for the music industry to succeed in its fight against piracy it must change the public’s perception of copyright law so that the reasons to obey the law are internalized.  To do so the authors propose that

Legislators and copyright holders must portray themselves as trustworthy. More specifically, the recording industry must appear to be treating artists and fans fairly, and legislators must appear to be acting in the public interest … copyright holders must make more compelling arguments concerning why the public should obey copyright law. If the people have a compelling narrative to follow, they will do so—whether it is true or not. The challenge, then, is not to craft better law; the challenge is to craft better rhetoric.

While there is no easy answer to the problem of piracy in the music industry, the article presents a great reminder that legal changes will not result in changes in public behavior.  Rather the music industry must focus on changing the public perception of copyright law through rhetorical discourse and add-value to purchasable copyrighted goods, to create the large change in public behavior they desire.