08 June 2012

Writing Heads

'The Evolution of Normative Legal Scholarship: An Example from Copyright Discourse' by Patrick Goold of the International Max Planck Research School for Competition and Innovation argues that
 Legal scholarship’s central function is to provide normative advice about the law. However, some academics have challenged the importance of such scholarship. Pierre Schlag argues that this function of legal scholarship is 'unraveling' because judges and legislators do not listen to academic opinions. This unraveling would seem to be present in the field of copyright law where numerous instances suggest that normative legal scholarship is ignored. However, copyright scholarship has evolved to overcome this problem. Today the most influential copyright scholarship comes not in law reviews or similar traditional academic outlets, but through publicly oriented books and social media. Rather than aim normative advice to lawmakers, scholars give their advice to the public generally. The public then hold the lawmakers accountable for enacting bad laws. In this way, academics are retaining their position as normative advice givers.
Cue sound of celebration, presumably.

Goold comments that -
One important reason for this public engagement is the work of copyright scholars. In a world where traditional academic opinion often falls on deaf ears, frequently copyright academics write directly for this public audience. 
The clearest example is that of Lawrence Lessig. Lessig is a professor of law at Harvard. In addition, he is the founder of Creative Commons, a former board member of the EFF, and arguably the figurehead of the Free Culture Movement. And, particularly in relation to the latter movement, it is interesting to note how Lessig has helped to develop this public engagement. As a legal academic and professor at Harvard, one would expect to see a long list of lengthy, footnote laden articles (perhaps fairly describable as esoteric and arcane) published in traditional legal journals and law reviews. These articles would make normative statements about the correct shape of the law. The target audience would be legislators and judges. This would be consistent with Rubin’s view of legal scholarship. That is what one would expect but not what one will find. Although some such works still exist, Lessig has conveyed his most influential legal thoughts by writing books designed for the general public to read. 
Some of Lessig’s most prominent works on copyright law are: Code, The Future of Ideas, Free Culture, and Remix. Most of his books are free for download under creative commons licenses as eBooks. Alternatively, they can be found in paper back at most book retailers. The central message of all these books is that copyright law is too restrictive and has negative effects on the creation and spread of creative works in society. And much of the Free Culture Movement is founded directly upon these ideas. The movement employs the Lessig-coined phrase “Free Culture” as its central theme and uses much of Lessig’s terminology and arguments. In doing so, these publications have given shape to the entire copyright discourse in the digital age. 
Lessig’s scholarly strategy has not stopped at writing books. He has adopted other innovative ways of distributing his advice. His use of television and film is one such example. Lessig appeared and discussed his ideas in popular television shows such as The West Wing, The Colbert Report and in popular documentaries such as RiP: A Remix Manifesto. In addition Lessig employs a private blog, a twitter feed, and a wiki (a website that allows the creation and editing of any number of interlinked web pages via a web browser using some simple tools) to distribute his ideas. He is also a frequent blogger on various other sites, such as the influential news-blog The Huffington Post
When one looks at Lessig’s work, one sees a legal scholar that has had a strong impact on how society views copyright policy. But rather than speak to lawmakers, who seem unlikely to listen, he has addressed his advice to the public generally. And Lessig is not alone in this process. While he is perhaps the clearest example, numerous other copyright scholars have also changed their target audience and distribution methods. In the footsteps of Lessig, well-established academics have with increasing frequency produced copyright literature for the general masses. This essay mentioned William Patry above. In addition to writing one of the leading copyright treatises, Patry has produced two popular book entitled Moral Panics and the Copyright Wars and How to Fix Copyright. In the former Patry discusses how copyright expansionists have resorted to metaphors that demonize copyright infringers just as is often the case with moral panics. And in the latter, Patry discusses the interplay between copyright law and technology. Neil Netanel, professor of law at UCLA law school, published Copyright’s Paradox. This work details the complicated relationship between copyright law and free speech. Adrian Johns, professor of History at the University of Chicago has produced Piracy: The Intellectual Property Wars from Gutenberg to Gates. This is an historical account of the term copyright “piracy.” And there are many more examples of these books. It would take too much time to detail them all here. Needless to say, these books are relatively cheap and they are distributed to the public in the same manner that other public books are. They can be found online at Amazon.com or a local bookstore. Many are even downloadable as e-books to facilitate the new generation of technology savvy digital-book readers such as the Kindle. In addition, these professors also employ the use of social media. This often comes in the form of blogs, some of which are individually run while others chose to contribute to collaborative blogs such as the Huffington Post. Many use Twitter as well. By doing so, these scholars distribute their normative legal suggestions directly to the general public, rather than to judges and legislators; they then rely on the public to demand that good laws be created in the routine democratic fashion, as has happened in the ACTA and SOPA/PIPA controversies.