Irene’s post and Kali’s post got me thinking: What is it that interests me about copyright law? The answer is somewhat surprising, given that I specialize in copyright law: nothing, per se. I’m not especially attracted to the doctrine of copyright law more than a number of other subjects, such as torts or contracts or even securities regulation. Indeed, as cocktail party conversation goes, I always cringe a little when I say I specialize in copyright, because it often leads to a discussion of some particular controversy in which I am forced to admit at the end that I have no idea what the answer is, as the statute is vague and there are cases on both sides (or maybe no cases at all). At least there are answers to what constitutes insider trading.

What interests me about copyright is not copyright law in itself, but copyright law as a subject. Over the past few years, I’ve come to realize that my interest in copyright law and Internet law predates law school. It’s part of my general interest in ideological transitions, and in particular turbulent ideological transitions. I’m interested in copyright law for the same reason I’m interested in vigilantes and alterations in foreign policy and systems accidents.

$1,920,000 for filesharing. As reported by the L.A. Times, Ars Technica, and Ben Sheffner, that’s what a jury in Minnesota just awarded several record labels for the willful infringement of their recordings by Jammie Thomas (now Jammie Thomas-Rasset), the Minnesota woman who allegedly downloaded and uploaded copyrighted songs over KaZaA. $1.92 million is an astounding figure, seemingly out of all proportion to any harm Jammie Thomas-Rasset could have caused, or to any reasonable deterrent. Even the record labels appear to be backing away from the award; nearly the first words out of spokesperson Carla Duckworth’s mouth were that they remain “willing to settle.” Ben Sheffner, of the Copyright & Campaigns blog, correctly notes that the verdict might in fact be “too huge” for the recording industry’s own good.

This is hardly a new issue. Record companies and movie studios often sue filesharers for far fewer works than the defendant actually copied, and settle for relatively small amounts given the range of statutory damages. It’s a problem if the law that media companies use to protect their works is so draconian that they are afraid to deploy it to their full advantage. You don’t see this in other areas of the law; no one routinely files breach of contract actions for one-tenth of their expectation damages just to avoid the appearance of a windfall.

So what’s the source of the problem? I think the explanation is the massive inertia of the copyright system in dealing with the fundamental alteration of the information universe: namely, that everyone is now a publisher. And, while it’s easy to scoff at the existing situation, it’s harder than most people think to figure out how to fix it. Which is why we are where we are.