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As used by copyright theorists, the term copynorm (or more frequently copynorms) is used to refer to a normalized social-standard regarding the ethical issue of duplicating copyrighted material. Questions about the ethics of copying came to public attention as a result of peer-to-peer (P2P) filesharing systems, such as Napster, Gnutella, and KaZaA. Survey research indicates that most users of filesharing systems do not believe that it is wrong to download MP3 files of copyrighted music, even though such downloading is unlawful. These questions are important to legal theory, because the ability of copyright law to control the copying of digital material may depend more on voluntary compliance than on hypothetical criminal or civil actions against individuals.
Copyrights and copynorms
Copyright is actually a collection of legal rules. Typically, copyright statutes confer a bundle of legal rights on the author or proprietor of a work (writing, a musical composition, or an image), including the exclusive right to make copies of the work, subject to the fair use. In the United States, the Constitution grants Congress power to confer exclusive rights upon authors to their writings, and Congress has exercised that power in a comprehensive statutory scheme, codified in Title 17 of the United States Code. Legal rules carry legal consequences. Violation of copyrights can give rise to civil and criminal liability. Each nation has its own copyright laws and international treaties set minimum standards for copyright protection. This entry focuses on the laws of the United States as an example.
Copynorms are informal social rules. Social norms include rules of etiquette as well as moral norms (such as the moral prohibitions on theft or murder) and quasi-moral norms (such as the social rules that create zones of privacy in public places). Copynorms are simply the informal social norms that determine the social acceptability of copying works created by others. Social norms are enforced by informal social sanctions, ranging from simple expressions of disapproval (mild) to shunning or vandalism (severe). Copyright law and copynorms are interrelated but distinct. Some copying that is not prohibited by copyright law violates copynormsóplagiarism of work in the public domain would be an example. More significant to copyright theory and policy, copying that is prohibited by law may be considered socially acceptable.
Socially acceptable violations of copyright law
In the late 1990s and early in the 2000s, peer-to-peer filesharing over the Internet became increasingly popular. The first P2P program to receive widespread attention in the media and popular consciousness was Napster. After the Napster service was shut down by an injunction issued by the United States District Court for the Northern District of California, a variety of other P2P (Gnutella, Bearshare, KaZaA, etc.) programs became popular. Perhaps the most significant use of P2P programs involves the distribution of MP3 files created by ripping copyrighted music from a commercial Compact Disc. The use of P2P to distribute digital copies of DVD files has also grown in popularity.
There is considerable controversy over the application of the copyright laws to individual, noncommercial use of P2P programs to distribute MP3 files, but judicial opinion, so far, has sided with the music industry and held that an individual who copies and distributes an MP3 file containing copyrighted music violates federal copyright law. Nonetheless, the use of P2P to share and download copyrighted music is considered socially acceptable. Survey research supports this conclusion, as does the use of P2P programs by tens or hundreds of millions of persons.
Although P2P has been the focal point in discussions of copynorms, the phenomenon is more general in scope. Some other contexts in which copynorms diverge from United States copyright law include the following:
- Video tape recording of copyrighted broadcast and cable television content for archival (as opposed to time shifting) use.
- Systematic photocopying of books and journal articles for academic and business use.
- Audio tape record of live music concerts.
- The use of copyrighted digital images (PNG, JPEG, etc.) on personal websites.
Empirical research on copynorms
Although the empirical research on copynorms is limited, important survey research has been done by the Pew Center on Internet and Society.
What causes weak copynorms?
In the absence of social science research, theorizing about the causes of the divergence between copyright laws and copynorms is necessarily speculative. Several tentative hypotheses have been suggested, including the following:
Implications for the law
What are the implications of weak copynorms for copyright theory and policy? This is a large and complex question, but some tentative points follow:
See also: Copyright, Norm, Copyleft, Intellectual property, Peer-to-peer, Napster