Commonality: Part Two – The Rule of Law

“The property of no man is secure in the present unbraced system of things. The mind of the multitude is left at random, and seeing no fixed object before them, they pursue such as fancy or opinion starts. Nothing is criminal; there is no such thing as treason; wherefore, every one thinks himself at liberty to act as he pleases.” — Thomas Paine, Common Sense

We need to talk about your criminal activity.

While I have many complaints to level against my country, I am a United States citizen. As such, I can take certain things for granted that others around the world, and even in North America, cannot. One of these is the rule of law.

I believe passionately in the rule of law. I maintain that the law achieves justice best when all citizens, including law makers, are subject to the law. I far prefer this to an autocracy in which I must appeal directly to the queen for my rights and hope that she is in a good mood. I do not have any friends who would disagree, and if the World Bank’s study on governance is correct, at least 92% of America agrees with me as well.

Even our citizens throughout history most famous for their civil disobedience believed in the rule of law. They had to, or they could not disobey it. Martin Luther King, Jr. wrote that one has “not only a legal but a moral responsibility to obey just laws.” Such a concept of responsibility can only exist where there is a simultaneous belief that the rule of law ensures justice and fair treatment for all. Our government rests upon this belief. The US Constitution guarantees it. It is fundamental to US citizens, and all of our rights as individuals stem from it.

When it becomes difficult if not impossible to obey the laws, however, people lose respect for the rule of law. This is the situation Thomas Paine was talking about at the beginning of the American Revolution. It is also the situation in which citizens around the world currently find themselves any time they connect to the Internet.

By some studies, such as Columbia University’s Copy Culture study, 45% of US citizens actively download material from the Internet illegally. For those between ages 18 and 29, the percentage goes up to 70%.

It’s possible of course to use these numbers to to decry a “piracy” epidemic, blah blah blah. But the numbers tell you something else: the respect for the rule of law, in this case copyright law, is low. What they don’t tell you is why.

The law is wildly ineffective for two reasons: because a normal citizen:

  1. cannot possibly understand the law;
  2. cannot possibly obey it.

Current copyright law in the US–and in the rest of the universe if the TPP supporters get their way–calls the download of even a single copyrighted work a felony, and attaches to it fines of $150,000 per violation. Effectively it criminalizes an activity that involves nearly 140,000,000 Americans in their workaday lives. It seems like a tough law. It isn’t. It’s merely a kind of insanity. Americans do not respect such laws, nor particularly should they. Respect for the rule of law is low because the law, quite frankly, is bullshit.

And I’ll up the ante. If you think the Copy Culture study’s numbers are high, I must disillusion you. The reality is that the number is much, much higher. Copy Culture only treated music and movies. Add in photographs. Add in text. Add in instances of copy-and-paste. Add in hyperlinks. At a conservative estimate, I would guess that the percentage of people who knowingly or unknowingly engage in copyright infringement daily is 90%, at minimum.

If an activity carried out by 90% of Americans is illegal under present law, then the law is not merely worthless; it is unjust. This is a law that corrupts the rule of law by making people disrespect it almost universally. A law that tells 280,000,000 average Americans, including children, that they are felons who should be imprisoned is a law that corrupts freedom. If the law fails this badly, then, as Dickens would say, “The law is a ass, a idiot.”

To restore the rule of law, the law must change.


The Rule of Law

In Part One of this series, I dealt with sharing that fails because people do not respect each other. In Part Two here, I want to talk about how sharing fails because people do not respect the rule of law.

In general the rule of law becomes corrupted through either ignorance of law or neglect. Let me approach the ignorance first.

So let’s turn this into an example.

You write your personal blog for free. You want and expect others to read it. You expect others will tell their friends. You expect that some will even share it, via link or email or social media or whatever method suits them. So you write freely, out of love, and give your friends a way to find it and share it. You don’t bother to copyright your work anymore than you’d copyright your conversations with your friends.

In the world before 1976, all this would have been just peachy. We no longer live in that world. The moment you put something down in recorded format from which a copy can be made, copyright law is invoked. And in the digital world, nearly every use creates a copy.

From the Copyright Clearance Center’s page:

Many people assume that online content, or content found on Web sites, is not subject to copyright law and may be freely used and modified without permission. This is not true. Others think that online content is not protected unless it carries a copyright notice. This is not true either.

Copyright law protects almost all content on the Web or in any other digital or electronic form. Therefore, permission is most likely required to use that work beyond fair use.

In other words, your online blog in which you detail your personal gallivanting, or through which you release your lugubrious poetry about your past lovers, or on which you post your curious collection of cats that look like Hitler, is wholly controlled by copyright law, whether your wish it to be or not. If you don’t deliberately and obviously opt out, then you are opted in. The consequence of your option is that none of your work can be shared freely. Each use beyond the initial one requires your express written consent, so be prepared to answer lots of emails from law-abiding citizens who wish to share that wonderful poem, or cat picture, or video of you traipsing through Interlaken Park.

Now you may say, “Well, no one will write me just to ask whether or not they can share my work with someone else.” And you are probably right. But then you are confessing that you are okay with people sharing your work illegally. You are admitting that you yourself do not respect the rule of law because, hey, the law’s just going to be broken anyway. This is a toxic way of thinking. Why, then, have laws at all? They’re all just going to be broken. And this in turn leads to neglect, which weakens the rule of law and weakens freedom.

If the problem is that people cannot share things you want them to share, then why not just solve the problem? Make the things you want to share shareable. A Creative Commons license would retain your rights, yet also tell your readers that you want them to share freely, as would a dozen other possible licenses. Furthermore it tells them that you believe in sharing. Without such a license, you are telling people I want complete control over this work at all times and I want to restrict how it is used on a case-by-case basis, but hey, go ahead and ignore me because I know you’re going to break the law anyway. That’s not sustainable. It makes everything worse: your work, your audience, and your own ethical compass.

There’s a boring old bromide in writing that one has to consider one’s audience. I want to reclaim this bromide from its status as an artistic cliché and take it to the purely ethical level. It is essential to consider one’s audience. Specifically: How will that audience encounter one’s work? What will that audience do with it? Is the work supposed to be shared, or limited? Will the audience share it? Will they take inspiration from it and do their own version? And if they will, should one make it easier for them to do so?

If you make work to share with others, then you should use a sharing license. You lose nothing. The license retains your copyright. It tells others what you want them to do with your work, and what you allow. The license can be relatively restrictive or relatively open. It doesn’t matter which. What does matter that it helps you achieve your goal, and it helps create a world in which your audience respects the rule of law.

That is the world we should be building together. Quoting Aristotle, “He who bids the Law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The Law is reason unaffected by desire.” We are not beasts. The rule of law is the basis of our human freedom. Licenses help to ensure that the rule of law is respected and freedom maintained. Reporters, bloggers, citizens–we all want to maintain that freedom.

We need to do better. Until the absurd laws are changed so that they work for citizens in a digital age, civic duty demands that we carve our own paths through the thick forest of law so that we can honor the rule of law and still share our culture freely. The RIAA and MPAA and Elsevier won’t do it for us. It’s up to us to take our freedom back.


Filed under Commons

Omar Willey was born at St. Frances Cabrini Hospital in Seattle and grew up near Lucky Market on Beacon Avenue. He believes Seattle is the greatest city on Earth and came to this conclusion by travelling much of the Earth. He is a junior member of Lesser Seattle and, as an oboist, does not blow his own trumpet. Contact him at omar [at] seattlestar [dot] net