September 6, 2012
"Hacking" New and Old Prohibitions: From the 18th Amendment to Today's Copyright Laws
About The New Prohibition: A Look at the Copyright Wars Through the Lens of Alcohol Prohibition by Temple Law prof Donald Harris [SSRN; University of Tennessee Law Review, Forthcoming) Techdirt's Mike Masnick writes "[w]hile that might be slight (or significant) hyperbole, law professor Donald Harris has put together a fantastic paper that compares the two situations and finds an awful lot of similarities." See So Many Similarities Between Copyright Law And Prohibition.
OK, well, there are always structural similarities that can be identified as elements of legally sanctioned prohibitions. Clearly the most important thesis offered by Harris, one shared by the similarity between copyright restrictions and the 18th Amendment, is that both could not (can not) be rigoriously enforced when a legal scheme was (is) inconsistent with widespread citizen interests and behavior.
Here's the abstract for The New Prohibition: A Look at the Copyright Wars Through the Lens of Alcohol Prohibition [SSRN]:
Over the past decade, copyright holders and content providers have increased legislative and judicial protection for copyrighted works and have concurrently increased enforcement efforts. Much of this has been directed at curbing massive filesharing. Despite the tremendous amount of resources expended in such efforts, filesharing continues at unabated and never before seen levels. Filesharing continues and enforcement efforts has failed because neither the laws nor the copyright industry’s efforts take into account the immense resistance and civil disobedience engendered by efforts to prevent a considerable segment of society from recognizing the reality of the Internet. Moreover, such enforcement efforts also fail to address the evolving nature of copyright. Rather than continuing to impose on society laws that society feels are both unjust and illegitimate, new copyright laws much reflect current societal morals and norms. These current norms suggest that filesharing is here to stay. As such, this Article offers a different look at the controversy surrounding the filesharing.
This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society’s morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed “noble experiment” of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.
Hat tip to PinHawk Blog. [JH]