Great Techdirt post by Larry Downes:

How Copyright Extension Undermined Copyright: The Copyright Of Parking (Part I)

from the parallel-parking dept

What do copyright and parking laws have in common?

The short answer: no one takes either very seriously.

According to a recent article in L.A. Magazine, only 10% of parking citations ever get written.Which is to say that 90% of the times that people park illegally, there are no consequences. Those who violate the increasingly strict parking rules in most U.S. cities are more likely to associate a ticket with bad luck or personal hostility against them than with the fact that they broke the law.

In other words, when you get a ticket, you don’t feel guilty. You feel victimized. As John Van Horn, the editor of Parking Today, explains, low levels of enforcement undermine the deterrent intent of parking laws. “We break the law often and get away with it. Deep down inside we know that. What makes us mad is getting caught the few times we do. ‘Ninety percent of drivers on this street got away scot-free today, but I get the ticket?’ That makes us crazy.”

Part of what drives us to rage at getting a ticket is that we don’t actually believe parking should be illegal in the first place. The freedom to park wherever there’s space is deeply ingrained in the American psyche if not the law. The invention of the parking meter in the late 1930’s was greeted with near-riots across the country. Editorials railed against the new devices as “illegal,” “immoral” and a “perversion.” The Alabama state Supreme Court declared meters unconstitutional in 1937, and ordered them removed from Birmingham streets.

“I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain,” says UCLA’s Donald Shoup, perhaps the nation’s only academic devoted to the study of parking.

A law that is rarely enforced—indeed, which is not cost-effective to enforce except sporadically—is no law at all. Which brings us to copyright.

Overprotective and largely unenforced rules, combined with a deep-rooted sense of entitlement, create an explosive combination. The problem is the same with parking and copyright. As copyright law becomes more strict, and its penalties more byzantine, Americans are less likely to make the effort to follow the rules, or to believe that new forms of technology-enabled copying are immoral in the first place.

We refuse to see our behavior as illegal, even when we know it is. Recent surveys by the Pew Research Center, for example, report that 72 percent of Americans between ages 18 and 29 “do not care whether the music they download onto their computers is copyrighted or not.” Rightly or wrongly (if those terms even mean anything anymore in this context), the added penalties, extensions, and limits on copying, along with decreasing rates of successful enforcement, are making it less, not more, likely that Americans will obey the rules.

We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time. Copying is illegal. Copying is not wrong.

Where did we get the idea of a right to free content? In large part, from the content producers themselves. An older generation grew up with music, movies and television programs beamed directly to their televisions and transistor radios at no charge. Those consumers can’t understand why saving content onto some medium and enjoying it again or later should suddenly transform a strongly-encouraged behavior into a felony.

A younger generation, raised on cheap Internet access, was likewise encouraged to enjoy all manner of copyrighted materials freely and frequently by content providers who wisely chose to rely, as their predecessors did, on advertising and other indirect revenue to pay their costs and generate profits. That’s the message of newspapers, magazines, and broadcast networks who offer some or even all of their content without a paywall. And the movie industry teases consumers mercilessly with trailers, interviews, and production blogs that show just enough of upcoming movies to make us feel entitled to see the rest, one way or the other, the sooner the better.

Yet when fans enthusiastically encourage others to embrace their preferences by posting clips or copies of popular content to YouTube or by ripping CDs and DVDs to repeat their enjoyment on other devices, they instantly cross the legal line from well-trained consumers to dangerous criminals—even terrorists.

Copyright may be the law, in other words, but it no longer holds any moral authority with most consumers. There’s no longer an ethical imperative to obey it or even understand it. Self-enforcement is fading, and the rules are so severe and so frequently violated that effective legal enforcement has become nearly impossible.

It’s a meter, and we all know that the meter is rarely checked. Copyright is a law in name only—as obsolete and irrelevant as rules still on the books in some jurisdictions that regulate who can or must wear what kind of clothing.

Next: How making the law stronger makes the law weaker