ScienceDaily (Nov. 3, 2011) — What is it about copyright that doesn’t work in the digital society? Why do millions of people think it’s OK to break the law when it comes to file sharing in particular? Sociology of law researcher Stefan Larsson from Lund University believes that legal metaphors and old-fashioned mindsets contribute to the confusion and widening gaps between legislation and the prevailing norms.
Our language is made up of metaphors, even in our legal texts. Stefan Larsson has studied what consequences this has when digital phenomena, such as file sharing and downloading, are limited by descriptions intended for an analogue world. “When legal arguments equate file sharing with theft of physical objects, it sometimes becomes problematic,” says Stefan Larsson, who doesn’t think it is possible to equate an illegal download with theft of a physical object, as has been done in the case against The Pirate Bay.
Using the compensation model employed in the case against The Pirate Bay, the total value of such a site could be calculated at over SEK 600 billion. This is almost as much as Sweden’s national budget, says Stefan Larsson. The prosecutor in the Pirate Bay case chose to pursue a smaller number of downloads and the sum of the fines therefore never reached these proportions.
In Stefan Larsson’s view, the word ‘copies’ is a hidden legal metaphor that causes problematic ideas in the digital society. For example, copyright does not take into account that a download does not result in the owner losing his or her own copy. Neither is it possible to equate number of downloads with lost income for the copyright holder, since it is likely that people download a lot more than they would purchase in a shop.
Other metaphors that are used for downloading are infringement, theft and piracy. “The problem is that these metaphors make us equate copyright with ownership of physical property,” says Stefan Larsson.
Moreover, there are underlying mindsets which guide the whole of copyright, according to Stefan Larsson. One such mindset is the idea that creation is a process undertaken by sole geniuses and not so much in a cultural context. In Stefan Larsson’s view, this has the unfortunate consequence of making stronger copyright protection with longer duration and a higher degree of legal enforcement appear reasonable. The problem is that it is based on a misconception of how a lot of things are created, says Stefan Larsson: “Borrowing and drawing inspiration from other artists is essential to a lot of creative activity. This is the case both online and offline.”
Stefan Larsson has also studied the consequences when public perception of the law, or social norms, is not in line with what the law says. One consequence is that the State needs to exercise more control and issue more severe penalties in order to ensure that the law is followed. The European trend in copyright law is heading in this direction. Among other things, it is being made easier to track what individuals do on the Internet. This means that the integrity of the many is being eroded to benefit the interests of a few, according to Stefan Larsson: “When all’s said and done, it is about what we want the Internet to be. The fight for this is taking place, at least partially, through metaphorical expressions for underlying conceptions, but also through practical action on the role of anonymity online.”
Stefan Larsson’s thesis is entitled Metaphors and Norms – Understanding Copyright Law in a Digital Society.