Caution: This blog contains sweeping generalizations.

It is my imagination, or is there a trend towards using the terms "law" and "regulation" interchangeably, particularly when talking about copyright? Are law and regulation in fact the same thing? If they are different, which is copyright? This matters because "regulation" is often spoken of as a bad thing, whereas law has an air of greater respectability. But is "regulation" just what we call a law we don't like?

One might distinguish law and regulation at the level of process--law is what legislators (Congress or parliment) enact, plus the common law principles developed by judges in case law, while regulation is what is promulgated by administrative agencies. This distinction is simple and somewhat helpful--different procedures do yield different types of rules, because of, for example, differences in the accountability mechanisms for the rule-makers in question. But ultimately a process-based distinction between law and regulation fails to get at the heart of the matter. What we want to know is if there is a *substantive* difference between law and regulation, and if so, what it is.

I find Bruno Leoni, an Italian legal scholar, helpful on this point. Leoni reminds us that the essence of law historically was *not* statute, but case law or common law. "Law" began as general principles addressing the fundamentals of property and contract, rooted in custom, very slow to change, and identified in cases. Judges often spoke of "finding" law not "making" it, and the process of figuring out the rules according to which disputes would be resolved was much more "bottom up" than "top down." (Even codes like the Roman law were traceable to this case law process of finding law in ancient times). By contrast with law, kings and parliments enacted "decrees"--uncertain, ephemeral commandments concerning particulars, often creating exceptions to rules rather than applying them, very much top-down. These decrees are the equivalent of "regulation" today--subject to constant change and revision, micro-managerial, often concerning exceptions not rules, and still very much top down.

In an increasingly baroque modern legal system, it is increasingly difficult to find clear cases of either law or regulation, but the fact that there is a lot of gray does not mean there is no black or white. Statutes can have characteristics of both law and regulation--in spite of being written down statutes are capable of being tremendously uncertain because they might be changed overnight, but they may be very general or very particular, either setting out fundamentals or amount to attempts to micro-manage particular situations.

Copyright began as regulation. It is still top-down. But it does seem to have evolved into something much more fundamental, not like physical property in every single aspect, but closely analogous to it in function. And the basic rules have remained fairly constant over time.

On the whole, referring to "copyright regulation" instead of "copyright law" while not strictly wrong is none-the-less something of a rhetorical dodge. Such references seek to associate copyright in our minds with the Interstate Commerce Commission or the FCC's indecency rules. The courts that have worked hard on coypright principles over the decades surely deserve better. But interestingly some of the most regulatory aspects of copyright are those that forces hostile to copyright tend to favor--the compulsory license and privileges for libraries, for example.

I have said it before, and I will say it again; whatever the solution to this problem it will not be found in rhetorical tricks or clever dinner conversation.