Fear and Loathing: Shame, Shaming, and Intellectual Property

Abstract

This paper investigates the relationship between intellectual property protection, shame, and shaming. Although some scholars have examined shame and shaming as they relate to criminal law and behavior, none have considered how shame and shaming govern intellectual property and copying behavior. This paper identifies and focuses on two significant intersections: First, shame shapes the behavior of would-be copiers, who abide by anti-copying norms even in the absence of formal intellectual property protection. Second, public shaming shapes the behavior of intellectual property owners, who refrain from aggressively enforcing their rights to avoid being identified as bullies or trolls. These two shame/shaming effects have opposing results — on one hand, restriction on copying, and on the other, the freedom to copy — but they unite to establish and enforce intellectual property “negative spaces” where innovation and creation thrive without significant formal intellectual property protection or enforcement. In areas beyond the reach of formal intellectual property protection, shame helps define the boundaries of informal or norms-based intellectual property practices. In areas governed by formal intellectual property protection, shaming helps define the boundaries of rights holders’ enforcement forbearance. The result of these effects is an overlay of shame- and shaming-driven behavior that sits atop, and informally adjusts, the boundaries of formal intellectual property protection. This, in turn, requires us to adjust our thinking about the ideal boundaries of formal protection. Shame and shaming are not suitable substitutes for formal law, nor are they miracle cures for law’s failings, but they may act as guideposts for determining where to draw the lines of formal legal protection.