Incentives [WAS Re: A Radical Thesis]

From: <ArborLaw[_at_]aol.com>
Date: Wed, 17 Apr 1996 17:12:19 -0400

Jessica Litman writes:
>
> Copyright laws, at least in the U.S., were not written to be
> understood and followed by "everybody" -- they're way too
> complicated. As currently written, they seem designed to be
> followed by those who have copyright lawyers, and essentially
> ignored by those who don't. That's pretty much what happens
> today.

Maybe it is the US Internal Revenue Code, 2 volumes of code sections on tissue paper, together with its 8 tissue-paper bound volumes of regulations, amended at least every year, which is less complicated and more user-friendly than the US copyright law?

The tax code is certainly meant to be followed by everybody--and we are all required to avoid committing crimes, whether we actually know something is a crime under state or federal law or not. Outside of traffic laws, divorce laws, landlord-tenant laws, and laws which paraphrase the 10 Commandments, the great majority of the public is lacking basic knowledge of the law. I agree that it would help if the Copyright Act and all other federal laws were re-written in plain language with an easily determinable application and outcome--but then you'd have an unacceptable number of lawyers, accountants, politicians and corporate managers permanently out of a job. ;) Even if we all know what the law is, we still have a basic compliance problem.

Would copyright be as widely ignored if there were a regulatory agency policing payment for intellectual property with the enforcement powers of, say, the IRS? Should changing the copyright laws involve the same set of considerations as changing the traffic laws, or is it more like changing the tax laws? How much of our economy's activity will come to depend on payment for intellectual property?

John Lederer writes, citing the classic argument for relaxing traffic-type laws:
>
> One of the symptoms of it [the copyright law] not working well
> is that the law becomes increasingly violated by those whose
> normal inclination is to obey the law.

Inclined to obey, of course, until the law no longer asks my good behavior--but asks for my out-of-pocket *payment*. Non-compliance with laws requiring payment is always a great problem and is not necessarily indicative that the law is not working well. It may be working too well for what it is designed to do. Many otherwise law-abiding US citizens feel that it is very All-American to cheat on taxes.

With both the copyright law and the tax law, we are ultimately asking people to fork over a slice of their personal economic pie, in a transaction where the receipt of a benefit is not necessarily directly dependent on any individual payment. This "public goods" problem doesn't go away if you make the law easier to understand or to comply with, because it involves separating people from their money. That's why the government uses mighty big enforcement to collect income taxes and Social Security payments.

Digital media not only cause headaches for the copyright law, but for the monetary system and the taxing authority as well. Digital payment systems will break the current financial and banking regulatory mechanisms, and the tax compliance system, unless we come up with some new realities. In the copyright area this may mean that authors, publishers and users accept compulsory licensing, micropayment technology, digital watermarking, and loss of control over transformative and "moral" rights.

Carol Shepherd
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   Carol Ruth Shepherd                          arborlaw[_at_]aol.com
                                             320 S Main Box 8403  
        business                              Ann Arbor MI 48107 
  intellectual property                      +1 313 668 4646 tel   
    and new media law                        +1 313 663 9361 fax

==--====-==-=-=-==--=--====--=-=-=-====---===-=-=-====---===---= Received on Wed Apr 17 1996 - 21:14:03 GMT