Wednesday, September 10, 2008

Back for the school year!

It's been a long time since I posted on here, unfortunately. Oh well. As classes have resumed, I think I can post more actively as I'll have more amusing topics to recite.

Classes this year include:
"Public Law"
"International Law"
"National Security and Civil Liberties in Wartime: The Global War on Terror"

(And two others which are remarkably more boring and unlikely to get any post-time. You have no idea how fascinating public policy analysis from a legal standpoint can bet at 9AM on a Monday morning, for example.)

Perhaps one of the most interesting legal issues in intellectual property of our time is undoubtedly the cases dealing with copyright that arise out of the Recording Industry Association of America (and its counterpart, the Motion Picture Association of America, collectively the Content Industry with their international counterparts) and their constant quest to have file-sharing and music copying made criminal offenses, or at least to raise the civil penalties and lower the standards to such an extent so as to make victory in such cases almost automatic.

I often post on Slashdot, and in fact, it was just today that I traded comments with Ray Beckerman about the issue. Ray Beckerman is a lawyer in New York, and the author of Recording Industry vs the People, a blog about same; in fact, he often defends the recipients of these lawsuits.

I have long disliked the paradigm that surrounds intellectual property as we know it today. At its most basic, intellectual property is not really 'ownership', so much as it is a limited, government-granted monopoly on certain rights. In fact, I believe, this is most closely analogized with real property law- while one might 'own' a piece of land, for example, the rights associated with this 'ownership' more properly exemplify a limited, government-granted monopoly on certain rights for that land. That does not mean the monopolies are the same, just that the principles behind them are the same. I believe, in fact, that the internet and digital distribution of content will necessitate a new and improved mechanism of dealing with title to digital property, if not a new way of thinking of that property, in much the same way as technology demanded an advance in ways of dealing with title to real property.

But I don't believe, unfortunately, that such a battle can be won in the courts. As I told Mr. Beckerman, a law professor once told me (and I believe it was my Administrative Law professor) that clients are happy with lawyers who deliver to them what they desire; shoplifters are happy when their lawyers allow them to escape jail, but that hardly means that the laws against theft are likely to be struck down.

Lawyers have won some great social justice victories in the past century; lawyers won Brown v. Board of Education, lawyers won Griswold v. Connecticut, and lawyers won Roe v. Wade. But in each of those cases, the very fabric of the law itself was being attacked, and defeated- the function of the courts.

If, rather than attacking the fabric of the law itself (which is very hard to do, as the authority to create copyright law is not one that I have seen disputed) one only seeks to defend specific cases under specific circumstances, one cannot hope to win; the best one can hope to do is stem the tide.

Copyright law regarding digital property needs to be reformed; of this I have no doubt. But the Courts cannot assist; the government is entirely within its rights to create copyright legislation at its discretion, within some very wide guidelines. Such a battle must be fought in Congress or the Houses of Parliament- the law-making entities that define the copyright legislation in the first place. That, in turn, means winning hearts and minds. In 1988, the Supreme Court of Canada struck down abortion law in Canada in R. v. Morgentaler. The Court made no bones about the fact that the parliament could come back with another law, one which might meet muster- but Parliament never did so. The Courts are not necessary if the People, and their representatives, can be convinced.

Which is, I think, where the issue tends to fall down. Convincing people is hard, but it seems that simply securing court victories does little good. A lawyer who extricates his client from a shoplifting charge is unlikely to win acclaim from the public; rather, he is likely to be vilified on the grounds that he assisted in a criminal walking free.

And I believe the Content Industry has the upper hand here; they, after all, have got a rather impressive head start in legislatures across the western world, and their viewpoint appears already pervasive in the minds of the public at large.

Perhaps it's time for those who believe in a new paradigm of copyright to change strategies.

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