8.
Family Entertainment and Copyright Act of 2005 (P.L. 109–9), signed April 27, 2005. (Adds – 2319B to Title 17, which makes it a crime punishable with imprisonment to copy in a movie theater, without authorization, motion pictures or any audiovisual work protected under Title 17.); Intellectual Property Protection and Courts Amendment Act of 2004 (P.L. 108–482), signed December 23, 2004. (Amends the Trademark Act of 1946 to provide for increased criminal and civil penalties for individuals who willfully submit false information to a domain name registration authority in connection with an Internet address used to commit a crime or engage in online copyright or trademark infringement.); Satellite Home Viewer Extension and Reauthorization Act of 2004 (contained in Consolidated Appropriations Act, 2005, P.L. 108–447), signed December 8, 2004. (In addition to extending for an additional five years the statutory license for satellite carriers retransmitting over-the-air television broadcast stations to their subscribers and making a number of amendments to the existing section 119 of the Copyright Act, SHVERA directs the Copyright Office to conduct two studies and report its findings to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate. One study, due by December 31, 2005, required the Office to examine select portions of the section 119 license and to determine what, if any, impact sections 119 and 122 have had on copyright owners whose programming is transmitted by satellite carriers.); Individuals with Disabilities Education Improvement Act of 2004 (P.L. 108–446), signed December 3, 2004. (Modifies – 121 of Title 17, providing for the establishment of the National Instructional Materials Accessibility Center ('NIMAS') and the free accessibility of certain materials — such as Braille, audio or digital text for use by the blind — via NIMAS.); Copyright Royalty and Distribution Reform Act of 2004 (P.L. 108– 419), signed November 30, 2004. (Amends the Copyright Act to replace the Copyright Office copyright arbitration royalty panel system, created under the Copyright Royalty Tribunal Reform Act of 1993, with three copyright royalty judges to oversee adjustment of compulsory license royalty rates and distribution of copyright royalties.); Small Webcaster Settlement Act of 2002 (P.L. 107–321), enacted December 4, 2002. (Amends the Copyright Act to establish performance royalty rights for sound recordings transmitted through electronic digital technology.); Technology, Education, and Copyright Harmonization Act of 2002 (P.L. 107–273, Subtitle C of the
Appendix Notes
1.
Lessig,“The New Chicago School”, 661.
2.
See H. L. A. Hart, The Concept of Law, 2d ed. (New York: Oxford University Press, 1994), 6–13, 27– 33.
3.
For example, Illinois law states:“The third Monday in January of each year is a holiday to be observed throughout the State and to be known as the birthday of Dr. Martin Luther King, Jr.Within 10 days before the birthday of Dr. Martin Luther King, Jr., in each year the Governor shall issue a proclamation announcing the holiday and designating the official events that shall be held in honor of the memory of Dr. Martin Luther King, Jr., and his contributions to this nation”; 5 Illinois Comprehensive Statutes Annotated 490/65 (West 1998).
4.
See Robert Cooter,“Expressive Law and Economics”,Journal of Legal Studies 27 (1998): 585.
5.
Cf. Paul N. Bracken, The Command and Control of Nuclear Forces (New Haven: Yale University Press, 1983), 179–237; Christopher Chant and Ian Hogg, The Nuclear War File (London: Ebury Press, 1983), 68–115.
6.
On the other side, the military built into the system technological brakes on the ability to launch, to ensure that no decision to launch was ever too easy; see also Daniel Ford, The Button: The Nuclear Trigger — Does It Work? (London: Allen and Unwin, 1985), 118–21.
7.
“The phenomena of social meaning and incommensurability constrain rational choice (individual and collective). Generalizing, it is irrational to treat goods as commensurable where the use of a quantitative metric effaces some dimension of meaning essential to one’s purposes or goals. It would be irrational, for example, for a person who wanted to be a good colleague within an academic community to offer another scholar cash instead of comments on her manuscript. Against the background of social norms, the comment’s signification of respect cannot be reproduced by any amount of money; even to attempt the substitution conveys that the person does not value his colleague in the way appropriate to their relationship”; Dan M. Kahan,“Punishment Incommensurability”, Buffalo Criminal Law Review 1 (1998): 691, 695.
8.
Many scholars, Robert Cooter most prominently among them, argue that norms are special because they are “internalized” in a sense that other constraints are not; see Robert D. Cooter,“Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant”,University of Pennsylvania Law Review 144 (1996): 1643, 1662; Robert D. Cooter,“The Theory of Market Modernization of Law”,International Review of Law and Economics 16 (1996): 141, 153. By internalization, Cooter is just describing the same sort of subjectivity that happens with the child and fire: the constraint moves from being an objectively ex post constraint to a subjectively ex ante constraint. The norm becomes a part of the person, such that the person feels its resistance before he acts, and hence its resistance controls his action before he acts. Once internalized, norms no longer need to be enforced to have force; their force has moved inside, as it were, and continues within this subjective perspective. In my view, we should see each constraint functioning in the same way: We subjectively come to account for the constraint through a process of internalization. Some internalization incentives may be stronger than others, of course. But that is just a difference.
9.
