I came across a breath of fresh air today from the academic community — a professor who takes offense at the notion that unauthorized infringement of a creator’s works should be viewed as some kind of a just social movement.

U. of California at Berkeley Law Professor Peter S. Menell has authored a short work titled “File-Sharing Copyrighted Works Without Authorization: A Misguided Social Movement,” distributed by The Media Institute. It appears Professor Menell is tired of hearing about how sharing someone else’s creative work with numerous strangers is somehow a blow for freedom. In particular, he cites the rhetoric put out by supporters of and attorneys for the infringment trials of Jammie Thomas and Joel Tenenbaum, including Tenenbaum himself.

We’ve noted on this blog some of the silly rhetoric surrounding these cases, cases so transparent that in Ms. Thomas’ case, she has been found guilty twice, with the damages set by a jury increasing from one trial to the next (good luck with your third!), and in the case of Mr. Tenenbaum, him pleading guilty before the trial even began.

Professor Menell quotes Tenenbaum attorney and Harvard gadfly Charles Nesson from a web site dedicated to depicting the infringer as David facing Goliath, and notes that comparisons were made to the civil rights pioneer Rosa Parks. Menell’s take:

I dare say that only Stephen Colbert, at his most facetious, could see the parallels between Joel Tenenbaum and Rosa Parks. With a gleam in his eye and a smug smile, Colbert might sum it up simply: “Anyone can see that the comparison between Rosa Parks and Joel Tenenbaum is eerily similar.” Both were victims of grave injustice who were willing to sacrifice for the greater good. One wanted to end racial segregation and discrimination; the other wanted to avoid paying for music (but wished “more than anything” that artists get compensated for their expression), lied about it, tried to blame file sharing on others, ran up the costs of litigation, and, in the end, faced the music by saying that he would avoid the severe penalty through a bankruptcy filing.

Professor Menell praises the Internet for facilitating the dissemination of information, but adds that it also reveals the “incredible human capacity for rationalization.” He continues:

Joel Tenenbaum’s defense sought to disguise selfish motivation and self-righteous indignation at paying a penalty for violating copyright liability as a cynical and disingenuous social movement. This was not a case involving political speech or transformative user-generated creativity. This was not a case of mistaken identity. Nor was it a case where the recording industry sought maximum damages; recall that the plaintiffs offered to settle up-front for $3,500 – reflective of the costs of investigation and enforcement, with some deterrent bite.

This was a case about not paying for sound recordings, not paying a justifiable penalty for not paying for sound recordings, and running up the costs of litigation though dishonesty and vexatious litigation.

Noting Tenenbaum was quoted as saying the file-sharer wished “more than anything” that artists would get paid, Professor Menell said the best way to do that is to engage in a legal market with creators. Buy their works. Encourage their use of new means of distribution. But don’t abandon the market by embracing infringement.

Of course, that argument will only resonate with someone who believes that creators create in part because of the rights they hold under copyright law. We at the Copyright Alliance know this to be true. Millions of creators know this to be true. Professor Menell knows this to be true. But many infringers, demonstrating the capacity for rationalization articulated by the professor, deny this basic truth.

I’d be very curious to watch the interaction at the Berkeley Law School professor coffeemaker. Berkeley has Professor Menell and another professor, Robert Merges, who as I’ve noted on the blog is also quite insightful on the rights of creators. Yet the law professor who manages to get herself the most ink in the copyright debate is Pam Samuelson, who runs an eponymous public policy clinic that wishes to 1) redefine fair use to such an extreme that a creator would have almost no power to exercise his or her rights over reproduction and the creation of derivative works; 2) all but eliminate statutory damages, making it such that it will always be worth a gamble to infringe, because if at the end of the day all you have to pay is provable damages that will cost less than paying legally in advance; 3) allow users of technology to decide what rights they will exercise over a creative work, regardless of consumer-friendly attempts to offer different uses at competitive price points; 4) force into law a perception that if technology can enable infringement, then we should focus on ways to accept this new social reality; 5) shift the legal focus to empowering the individual who finds their user-generated video temporarily taken down by a video aggregator over the creative talent behind the production of the work they just used; and 6) impose through public policy a new “business model” for all music transactions that puts all rights into a compulsory regime, with rightsholders having no say over production, distribution or even how much they’re paid.

I just wish Professors Menell and Merges had a PR machine like Professor Samuelson.

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This entry was posted on Wednesday, February 17th, 2010 at 9:28 am by Patrick Ross and is filed under copyright law, copyright opponents, creators, drm, fair use, licensing, p2p, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.