Legal Commentary

Per Sam Adams, Nicolas Chartier, the producer of the Hurt Locker has filed a lawsuit against a number of file sharers who downloaded the movie using BitTorrent. Very interesting to me was Adams's discussion of an email exchange between Chartier and a user calling himself Nicholas:

Although not defending Chartier's obviously flawed analogy between downloading data and home invasion, Adams is also not too sympathetic with file sharers.  Here's his take:

I hear what Adams is saying, and I'm not altogether insensitive to this line of criticism of file-sharing, but I do think that it's a bit simplistic to call the consumption of culture a "luxury and not a right." 

Hollywood does all it can to make the symbols and stories it peddles an essential part of our cultural lexicon.  But when royalties are at stake, it is quick to say that no one really needs to consume the product it produces.  It seems to me that our needs go beyond the provision of food and water and include access to a shared culture, which, given our system of cultural production, means access to intellectual property.  On the other hand, I have no doubt that many file-sharers are likely people who could afford to pay for their access to that culture.

Where I think I disagree more vigorously with Adams is his search for some sort of middle ground that excludes both groups he criticizes:

I'm not exactly sure what he has in mind, but I think it's wrong to see the debate as some sort of tug of war between equally unreasonable positions.  It's quite possible for both sides in a debate to be wrong, but not equally so.  And, if I were forced to choose between an industry pursuing lawsuits that ruin lives on the one hand (not to mention Chartier's unhinged moral equation of file sharing with violent crime) and overly simplistic libertarian sloganeering on the other, I'd take my place with those in the latter camp any day of the week.  I'm not saying I agree with those slogans as a matter of IP policy, just that, in my opinion, the middle ground that Adams seeks is pretty much foreclosed by the extreme position of the well-connected content-owners who have pretty much had a free hand in designing the current copyright system. 

As Sonia Katyal and I argue in our book, Property Outlaws, the more expansive and repressive copyright law has become, the less legitimate it has become in the minds of consumers and, as a consequence, the more of a disobedient reaction it has engendered.  I think it is this perceived illegitimacy that generates a great deal of the strident the rhetoric of the disobedient actors, like the BoingBoing commenters Adams criticizes.  That rhetoric may not be wise, but the two sides do not share equal blame for the current, untenable state of affairs, since only one of them has had the power to reshape the current legal landscape.  Until the entertainment industry realizes that its current punitive strategy undermines its efforts to spread norms of respect for intellectual property, the consequence will be even greater skepticism about the legitimacy of IP law as a whole and therefore even greater levels of disobedience.  And the middle ground that Adams hopes for will remain a fantasy.