Culture Clash on the Internet

Jonathan Handel
July 21, 2009

TroyGould
jhandel@att.net

Available on the Huffington Post at

http://www.huffingtonpost.com/jonathan-handel/culture-clash-on-the-inte_b_242508.html

The Internet has devalued content to the point where it is often offered at no charge—
newspapers, for instance—or widely misappropriated, as with music and movies. Either way,
many people expect much of their content to be free. Why is this, how did it happen, and,
focusing on music and movies, what can be done about it?

I’ve previously written about the why, in Huffington Post1 and Vanderbilt Journal of
Entertainment and Technology Law2 articles, and identified six factors. Let’s focus on two: the
culture of piracy, and the rise of ad-supported business models. Underlying both is the belief that
content on the Internet should be free (a notion reinforced by the other four factors).

How did this attitude arise? The answer lies in the origin of the Internet. At first glance, this is
paradoxical: the Internet began in the late 1960’s as the ARPANET, a project of the Department
of Defense Advanced Research Projects Agency, or ARPA. The DoD, of course, seldom fosters
self-gratification, a trait that underlies the “free content” culture of the Internet.

However, take a second look. The ARPANET was developed not in-house by ARPA, but
primarily by defense contractors orbiting Harvard, MIT and Stanford, and by universities. Their
faculty and staff used the ARPANET for social purposes as well as research, for instance by
setting up news groups encompassing a variety of recreational interests. No one charged for
participation in those groups, or anything else on the ARPANET, and there was little regulation
of content—or of file transfers via the network. Those files were primarily documents, data and
software, since digitized music and video were effectively non-existent. Still, the precedent was
set: file sharing was virtually unfettered.

The predominance of researchers on the ARPANET fostered an academic ethos that includes the
concept that information, i.e., content, should be free, since only by openly sharing research can
science and other disciplines advance. As the ARPANET grew, the DoD installations on the
network were split off in 1983 into a separate MILNET, leaving the ARPANET as primarily an
academic facility. The transformation to a free-oriented environment was complete.
Significantly, though, the network was primarily used by students and faculty in the computer
science field. Its evolution towards the Internet occurred with little public notice until the early
1990’s. By then, its norms were set.

1 http://www.huffingtonpost.com/jonathan-handel/is-content-worthless_b_96195.html.
2 http://www.troygould.com/uploads/content/content_technology.pdf.

Culture Clash on the Internet.doc -1-

At the same time, an “information should be free” movement was growing, initially focused
mainly on the software arena rather than networking. This coincided with the rise of personal
computers, and was a reaction to the concurrent rise of consumer software, which of course was
generally offered for sale, not for free. As the movement grew to encompass other forms of
content, it reinforced and made latent the norms that had developed on the ARPANET.

In contrast to these trends, pre-Internet commercial timesharing systems were being deployed in
the late 1970’s and early 1980’s, offering consumers email, information and entertainment, but
on a paid basis, as befits a commercial offering. Thus, these systems had different cultural norms
than the ARPANET—different histories, expectations, rules and practices. Ultimately, though,
these systems were overshadowed by—and their commercially grounded norms had little effect
on—the Internet.

During the same period, copyright law began to have meaning for the public in a digital context,
but at first only for the limited population who traded in pirated software and games. Prior to this
time, the only infringement committed by significant segments of the public involved physical
media: mix tapes, concert bootlegs, and album copies on cassette made for friends. Although
relatively common among young people, these forms of music (let alone any form of video)
weren’t distributed digitally, because personal computers and networks at the time couldn’t
process the large files involved. Thus, creation and distribution of these analog tapes was a time-
consuming, manual process that didn’t imperil the music industry.

That began to change with the availability of the compressed MP3 audio format in 1995. The
format exploded in popularity in 1997 with the release of the free, computer-based Winamp
player software and even more so in 1998, with the introduction of the Rio portable MP3 player,
a forerunner of today’s iPod. Accelerating these trends, modems were becoming faster, personal
computers more powerful, and the Internet more pervasive. People began to rip CDs—that is,
copy them to personal computers in MP3 format—and share the MP3 files over the Internet.
(Ripping was possible because the audio CD standard, developed in 1980, omits copy protection,
perhaps due to a failure to anticipate the capabilities that developed 25 years later.)

The above history, cultural trends, and technical factors appear to be what led to widespread
copying and distribution of music and, later, motion pictures. Although educational campaigns
have informed and reminded the public that such conduct is infringement, the underlying norms
have proved difficult to dislodge, an effect that scholars refer to generally as the “sticky norms”
problem. Thus, many people continue to violate the law.

But why? Or, to turn the question on its head, why do people ever obey laws (criminal or civil),
even when it may be in their self-interest not to do so? This question has been studied by
scholars such as Prof. Tom Tyler of NYU, who lays out several reasons that researchers have
examined: (a) people consider the “tangible, immediate incentives and penalties . . . [i.e.,]
personal gains and losses” resulting from obeying or disobeying a law (alternatively, the
certainty, swiftness and severity of punishment); (b) people decide whether a particular law is
moral (i.e., just); and (c) they decide whether a law is legitimate (i.e., promulgated by an
authority that has the right to do so).

Culture Clash on the Internet.doc -2-

Evaluated against these metrics, copyright law as applied to content on the Internet falls woefully
short. The immediate incentives to infringe copyright are clear: free music and movies. The
penalties, in contrast, though severe, are neither swift nor certain, since only a small percentage
of infringers are sued (and usually only uploaders of content, not downloaders). In addition, the
prevalence of legitimately free content on the Internet—whether user generated content or ad-
supported commercial works such as newspapers—probably undermines the perception of
copyright law as just; after all, if some content is free, why not all of it? Finally, the perception
that content companies are driving the copyright laws (and, of course the fact that they are filing
the lawsuits), and a widespread disdain for music labels in particular, delegitimizes those laws.

Two other factors that drain perceived morality and legitimacy from copyright law are the fact
that the targets of demand letters and lawsuits were often young people or their sometimes
unknowing parents; and that the damages sought or obtained were sometimes grossly
disproportionate to the offense. As scholars have discussed, these factors may have precipitated a
backlash that actually decreased rather than increased compliance. In any case, ineffectiveness
and negative public perception appear to have put a halt to copyright lawsuits against consumers.

What next? When noncompliance is widespread, sometimes the laws change (as in the
elimination of prohibition and of sodomy laws) and sometimes behavior changes, as in the case
of drunk driving, which was reduced significantly by a combination of stricter laws and broader
education. In the case of copyright, though, the laws are strict already, but neither that nor
education have been effective.

Perhaps what’s needed is penalties that are less strict—in the scholarly terminology, “gentle
nudges” rather than “hard shoves”—but more widely enforced. If demand letters and
infringement lawsuits targeting “first offenders” sought significantly lower damages (assuming
litigation costs permit this approach), but such letters and lawsuits were issued much more often,
public perception might change. Setting the damages at a level that young people or their parents
would find affordable but quite unpleasant could reduce the perception of unfairness, but still
have sufficient bite. Coupled with widespread enforcement, such damages might change
people’s cost-benefit analysis while avoiding backlash. Something has to be done to reduce
misappropriation of music and movies, at least until ad-supported business models (or other
alternatives) become sustainable, if they ever do. Maybe this is the way.

This article benefitted from discussion with Prof. John Tehranian of Chapman University.

———————

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