Disputing Humor: Comedy, Folkways and the Internet
Did you hear that America wants to put up a 10-foot-high brick wall like 5 feet deep so no Mexican can get in? (beat) Now, who do you think is going to build that wall? -- Ari Shaffir, Comedian, from today's Los Angeles Times article Funny, that was my joke by Times Staff writer Robert W. Welkos.
It appears that the perfect storm of an expanded comedy circuit, the ready availability of comic routines on the internet and blogger analysis of the same material in different comedians' hands has resulted in an outbreak of comic outlawry that used to be controlled by folkways, custom, convention and peer pressure.
(below: sample of YouTube video comparing Mencia and Cosby routines referenced in the L.A. Times article)
Though most comics declined the Times' requests for comment, Bobby Kelton, "a veteran of stand-up" recalled the "old days" in which
no one dared use another's material . . . If they did, the word would get out and you'd be ostracized . . . Then, as the comedy boom hit and tens of thousands of people got into comedy, that all kind of went out the window.
To understand the issue, the Times sought legal advice from local entertainment heavy-weight Pierce O'Donnell and Seattle copyright expert Robert Cumbow of Graham & Dunn.
O'Donnell cautioned that "[h]umor is kind of universal and copyright laws want to promote creativity," suggesting that a comic offended by another's use of his material was not likely to win money damages or injunctive relief if moved to bring suit. Cumbow, however, was willing to opine that one comic would "probably" have a claim against another for using a different version of an original joke "unless your telling of the joke is dramatically different."
What Does this Have to Do with IP ADR?
A lot!
Let us remember that culture precedes the law. Folkways, custom, peer-pressure, taboos, and ostracism were the ways in which comic Bobby Kelton remembers the comic-subculture used to govern itself. Take the stage, tell another comic's joke and you were voted off the island.
But what island does one get voted off of these days? Increasingly, it's the virtual atoll of the internet where so much mischief (like YouTube video above) hatches.
Governing Internet Behavior -- the Numbers
First, let's talk about Bobby Kelton's "old days" when the scene must have numbered in the hundreds rather than the tens of thousands. At those numbers, as Malcolm Gladwell instructed us in his best-selling book The Tipping Point, we are capable of self-governance.
As Gladwell explains (quoting British anthropologist Robin Dunbar),
[t]he figure of 150 seems to represent the maximum number of individuals with whom we can have a genuinely social relationship, the kind of relationship that goes with knowing who they are and how they relate to us . . . At this size, [rules] can be implemented and unruly behavior controlled on the basis of personal loyalties and direct man-to-man contacts. With larger groups, this becomes impossible.
Why only 150? Because our brains are simply not big enough to "handle the complexities of larger social groups." Gladwell, citing Dunbar again:
If you belong to a group of five people . . you have to keep track of ten separate relationships: your relationships with the four others in your circle and the six other two-way relationships between the others. That's what it means to know everyone in the circle. You have to understand the personal dynamics of the group, juggle different personalities, keep people happy, manage the demands on your own time and attention and so on.
If you belong to a group of twenty people . . . there are . . . 190 two-way relationships to keep track of: 19 involving yourself and 171 involving the rest of the group. That's a fivefold increase in the size of the group, but a twentyfold increase in the amount of information processing needed to "know" the other members of the group.
Internet Island's Population and Hang-Outs
Gladwell's and Dunbar's insights make me suspect that we react to the number of people on the internet -- one billion one hundred and seventy three million one hundred and nine hundred thousand nine hundred and twenty five (1,173,109,925) -- either with denial or mental melt-down.
And though we don't know where these billion-plus visitors "reside," we do know that 58.7 million of them visit blogs like this one every year. And on most of those blogs, the visitors have free reign to mark on the walls, defame their competitors, steal "content" (art, literature, photographs, music, videos), anonymously manipulate the stock market or, in Second Life, commit all manner of torts and crimes, some of which have found their way into "brick and mortar" courtrooms, i.e., "real" life.
What About Etiquette; What About the Law?
Just yesterday we blogged about the principles that govern content on Wikipedia. Some of those were formal rules of the road and others simply folkways. One suspects that the unruly mob of Wikipedia makes of itself a ruly collaborative group because it shares a single higher purpose and product. Cooperate with other contributors or the Wikipedia Ship sinks into chaos and oblivion.
This is not, of course, true of the rest of the internet.
The Law
"Law," say the academics, is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."
No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*
In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." /*
To date, Wikipedia aside, there is no group norm, no custom, no etiquette, and no taboo, let alone methods of enforcement, to guide the internet's governance. No higher authority to create law out of conflicting claims. So we muster on with the unimaginably large number of people on the Internet, a "place" we "visit" alone in our rooms, at our desks, clicking away at the old QWERTY keyboard.
A Conflict Resolution Process for the Future
Can we bring collaborative, value-creating dispute resolution norms and processes to this new culture? In other words, given the opportunity to create an entirely new way of resolving conflict in an entirely new culture, could we devise a system that is more self-determined, faster, cheaper, easier and softer on the people but just as hard on the problem as the old system was?
Could we abandon the adversarial paradigm because it's too expensive and cumbersome for the size and type of disputes that arise on the internet?
Could we build into that system the principles of accountability, forgiveness and reconciliation that are lacking in the present system -- a system that too often leaves people feeling so unresolved, so angry or bitter or frustrated?
I have no idea.
It feels good, though, to have finally formulated something of a question out of the chaos.
Please come on by and scrawl grafitti on our wall.
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*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). See the Weyrauch book on Gypsy Law here.
