- Conceptions of Copyright in a Digital Context

,  par Hervé BERNARD dit RVB

What type of metaphors do file-sharers employ to conceptualise copyright in a digital society ? How do they understand property and intellectual property in this context ? How do they conceive the file-sharing community and how does this ‘online piracy’ connect or not connect to law, social norms, copyright enforcement, and computational traceability ?

Given the historical variations in the inherent emphasis on ownership and attribution in copyright law within an American vis-à-vis a French continental context, are there, for example, noticeable differences between the American and the French respondents ?

By drawing heavily from conceptual metaphor theory, this article analyses findings from a large-scale survey (20,000 respondents) on online file-sharing. The results indicate that copyright is not seen as ‘property’ by the respondents at all, that a majority of the US and French file-sharers would prefer to be more anonymous online in order to avoid legal enforcement, and that almost one out of five already uses such tools. The results indicate that there is a difference in how the American and the French file-sharers understand or conceptualise the future of file-sharing and its relationship to copyright and that the French file-sharers focus more on the actual artists, while the American file-sharers focus more on the role of the industry and the government.

1. Introduction – metaphors we file-share by
1.1. Purpose and research questions
2. Metaphors and conceptions
2.1. Copyright as property
2.2. Copyright infringement and social norms
2.3. France and The US : Legal, lingual and conceptual differences
3. Method
4. Findings and analysis
4.1. File-sharers’ metaphors for copyright
4.2. (Intellectual) Property
4.3. Community and norms
4.4. US v. France
5. Conclusion

1 Introduction metaphors we file-share by
When Lakoff and Johnson [1980] wrote their ground-breaking Metaphors We Live By, they pointed out the absolute importance of metaphors for conceptual processes and abstract thinking.

Theoretically and empirically, they countered a widespread notion of the metaphor as simply an ornament of words bearing no deeper meaning for our thinking or our minds and showed that the metaphor has a fundamental role in how our thinking and meaning-making is conducted, stating that abstract concepts are largely metaphorical ([1980] ; cf. Lakoff & Johnson [1999]).

For example, they claimed that “our ordinary conceptual system, in terms of which we both think and act, is fundamentally metaphorical in nature” (Lakoff & Johnson [1980/2003 : 3]). This means that unlocking the metaphors constantly present in our language and mind – which are here argued to also be relevant to law and norms – may reveal to us how they are connected, what values and associations they bring, and on what conceptions they are founded. Scholars such as Johnson [2002 ; 2007], Winter [2001 ; 2007 ; 2008 ; 2011], and Larsson [2011a ; 2012a ; 2012b ; 2013a ; 2013b] have focused on the legal implications of the conceptual metaphor perspective, the latter doing so particularly within the context of the Internet and digitisation. Larsson [2011] argues that digitisation in society requires a remarkable need for metaphors and embodiment in order to speak and think of the partly new phenomena that it brings with it (cf. Larsson [2013b]).

Although Lakoff and Johnson did not predict the massive transformations that digitisation brings, in what Castells described as a “rise of the Network society” (Castells [1996]), the conceptual developments and challenges that digitisation presents are huge (Larsson [2012b]). Larsson [2012b] studies the conceptual development of the “copy” as regulated by copyright. The metamorphosis is immense, yet somewhat hidden :

Given that the conditions under which digital media are distributed have changed so fundamentally – from having been stored on various types of well-defined and delimited plastic objects to being disseminated as digital files in networks – the concept of “copy” has expanded to embrace a number of new phenomena consisting of a multitude of file formats for storing and distributing information in digital form. These phenomena possess attributes that resemble those of the original ones (i.e. reproducibility) but also attributes that do not (non-materiality). The fact that copies in a copyright sense once only meant physical entities and now mean both physical as well as digital entities describes a conceptual development of “the copy” [Larsson 2012b : 3].

Thereby, Larsson is able to demonstrate that the law is currently undergoing some sort of conceptual change without it being explicitly revised. Herein lies, arguably, a key to understanding why copyright has such weak representation in social norms in a digital society [Larsson 2011a], as discussed and studied by many others (Feldman and Nadler [2006] ; Karaganis et al. [2012] ; Lessig [2008] ; Svensson & Larsson [2012]). When familiar words in a tangible context are also used to include actions in a digital environment, not only does this challenge our understanding of computer-mediated behaviour but also the laws that seek to regulate us – laws that often have been conceived in pre-digital circumstances.

In May 2012, The Swedish Cybernorms research group conducted a survey of over 96,000 respondents on file-sharing in collaboration with the infamous BitTorrent tracker The Pirate Bay. It is the responses from the almost 20,000 French and US respondents that are analysed in this study. One section of the survey included an open-ended question that concerned future perspectives on the Internet and on file-sharing. This means that this data is a rich source for studies on how this near global file-sharing community conceptualises these issues and how they understand and describe both the current as well as the future situation via words and metaphors such as ‘theft’, ‘sharing’, ‘market’, ‘surveillance’, ‘law’, etc. (cf. Andersson Schwarz & Larsson [2013] ; Larsson et al. [2012]).