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Monday, March 22, 2010

Norms, File-Sharing and the Latest from the Thomas Case

Legal institutions struggle when the legality of behavior, and the normative acceptability of that behavior, diverge.  Sometimes behavior that is formally illegal is normatively acceptable; sometimes behavior that is legal is normatively unacceptable.  Want proof?  When you drive home today, drive 1 mph under the speed limit.  You'll find that behavior that is illegal -- speeding -- is normatively acceptable, but that legal behavior -- driving below the speed limit -- is normatively unacceptable. 

Legal institutions facing those divergences falter in predictable ways.  Behavior that is legal but normatively unacceptable cannot trigger a formal response from legal institutions, so tends to trigger 'popular justice' responses -- sometimes as mild as tailgaiting, sometimes as severe as violent vigilantism.  Behavior that is illegal but normatively acceptable usually does not trigger a formal enforcement response, but it can -- at the enforcer's discretion.  The danger here is selective enforcement.  Consider again the speeding example: what is racial profiling but selective enforcement against illegal but normatively acceptable driving behavior?

The same dynamic is at work with regard to property rights, as the recent lawsuits brought against Jammie Thomas and Joel Tennenbaum demonstrate.  At least among the young and computer-savvy, non-commercial file-sharing seems to be normatively acceptable, even though it is illegal.  According to the Electronic Freedom Foundation, one in five American Internet users is a file-sharer.  Ask the next class you teach for a show of honest hands, and you'll probably find that estimate accurate.

The predictable danger when there is is such a wide divergence between the legality and normative acceptability of behavior is selective enforcement.  Courts aren't good at avoiding being used as vehicles for selective enforcement.  In both the Thomas and Tennenbaumcases, Judges Davis and Gertner openly lamented their inability to prevent their institution from being so used.  Judge Davis in the Thomas case expressed serious misgivings about the unfairness of singling Thomas out for liability, stating that Thomas "acted like countless other Internet users.  Her alleged acts were illegal, but common."  Judge Davis recently slashed the damagesawarded against Thomas by 97%, from $1.92M to $54,000.  He clearly is intent on fighting back against the perceived unfairness of selective enforcement against illegal but normatively acceptable behavior.  But the RIAA isn't giving up, either; they have filed a motion for new trial on damages.

But even the RIAA must realize that it cannot hope to use the courts to selectively enforce against normatively acceptable behavior forever.  Usually, eventually, property rights catch up to notions of normative acceptability.

Mark Edwards

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Comments

Mark, this is very interesting. Do you think that there would need to be an active backlash against the selective enforcer (here, the RIAA) for the norms to change? Or does the law catch up to public norms on its own?

Posted by: Ben Barros | Mar 22, 2010 1:22:00 PM

Thanks, Ben. That's a question I've wrestled a lot with: if law evolves to reflect norms . . . how, exactly? I think there are several plausible explanations.

Public backlash is certainly one catalyst. Joseph Singer in a recent paper recounts the story of Justice Thomas's father-in-law attempting to fly the flag after 9/11, in violation of the covenants of the condominium in which he lived. His behavior was illegal but normatively acceptable, and the backlash against enforcement against him (although not selective) was enough to produce the Freedom to Display the American Flag Act of 2005.

It may be that when behavior becomes normatively acceptable on a broad enough scale, the political power of the majority produces a change in law. But if that were always true, we'd expect to see a widespread revision of speed limits. I think the reason we don't is that when behavior is illegal but normatively acceptable, we usually don't see a formal enforcement response. We don't need a formal change in law, because the de facto law becomes the limit of normative acceptability. That's why selective enforcement is so dangerous --the majority have no incentive to change a law that isn't enforced against their normatively acceptable behavior, but the targets of selective enforcement are nonetheless liable.

Perhaps the answer is that when the majority perceives itself as vulnerable to selective enforcement against normatively acceptable behavior, then we would expect a formal change in law. If that's true, then the RIAA may be cutting its own throat by hoping to deter file-sharing through high-profile enforcement; if the threat is perceived as widespread and real, it is more likely that the law will change, rather than the illegal but normatively acceptable behavior.

Posted by: Mark Edwards | Mar 22, 2010 2:06:20 PM

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