People have the wrong idea about the law. They think it's magic. They think that the law consists entirely of arbitrary rules, technicalities, and loopholes, and that dealing with the law is primarily about getting around the challenges the system creates. The idea that there might be real standards of conduct with a point to them that you're supposed to actually follow instead of getting around, doesn't count for much. I think it's partly the fault of the media, in showing us ten examples of dysfunctional nonsense in the law for every one example of the system actually working as it's meant to, so that we think the dysfunctional nonsense is what it's actually meant to be about. It's also the fault of the legislators, courts, and lawyers, for putting way too much dysfunctional nonsense into the law in the first place. But it's not all dysfunctional nonsense. The law generally does have a point to it, and the system is meant to actually work and to be for real.
I'm commenting on this now because I want to cite it in another article I'm writing, but one of the best examples I saw was about a year ago, and my notes here are based on what I wrote on a private mailing list at that time. At that time, an organization I was involved in wanted to have some events that involved watching DVDs, with as many of the general public as we could convince to join us. The law says, okay, DVDs are copyrighted material, it's illegal to have a public performance of copyrighted material without the permission of the copyright holders. That's what the law says, and it shouldn't be a difficult concept.
ONE RATIONAL RESPONSE TO THIS SITUATION: "Oh. The law says that we must have permission to do this. We must ask for permission."
ANOTHER RATIONAL RESPONSE: "Oh. The law says that we must have permission to do this, but we can't get permission, so we won't do it."
YET ANOTHER RATIONAL RESPONSE: "This law sucks, and we will choose to break it by holding our event without permission."
Any of those would make some amount of sense. We can have an entertaining discussion of which one is really right (and I have more sympathy with "This law sucks and we will choose to break it" than most people realise). Depending on the principles you start from, you can argue logically to any of them. But nobody gave much serious consideration to those rational responses, at least not at the start. Instead, the universal response in the organization was what you might call the first resort of desperation: absolutely anything except acknowledging that the law really does mean what it actually says.
People said: "That's not what the law says." Even when shown the exact section of the Copyright Act that does say that.
A separate argument for each individual word in the statute (including words like "the") that it doesn't really mean what the dictionary says it means. I'm not going to reproduce all of those here.
"It's been overturned by some kind of court precedent, right?" No, it hasn't.
"We're an educational organization." Most of the members are students. That's not the same thing, and it wouldn't be relevant anyway.
"But we paid for these DVDs!" Yes, but that's not relevant.
"But this material is licensed for R1 distribution!" You, the reader, may or may not know what that even means - I'm not sure the people saying it did, themselves - but there's no point going into that because it isn't relevant either.
"But we're a non-profit." There is nothing about being a non-profit in the law where it says "no public performance without permission." That just doesn't make a difference.
"The Berne Convention isn't an actual law in Canada!" That's a fun one because it shows that the person has done at least a little homework on the subject. The Berne Convention, you see, is an international treaty in which a bunch of countries (including Canada) agreed to standardize their copyright laws. It's true that the Berne Convention itself isn't directly a binding law on Canadian citizens - it's just a promise from the Canadian government to make certain laws. But they did implement the Convention by passing the actual laws, which are in the Copyright Act, and those ones certainly do apply.
"The copyright holders implicitly gave us permission to hold a public performance, when they did something else that only SEEMED to be completely unrelated."
(Edited to add:) "Those other people are doing it, so it must be legal."
"Let's give everyone a ticket and declare them to be temporary members of our organization. Then it won't be a public performance and we'll be okay. And we can talk about the show afterward so it'll be educational."
You'll hear a similar range of arguments any time that what people want to do, and think they should be allowed to do, conflicts with the law. I see it a lot with copyright (not just the public showings, but also stuff like fansubs and AMVs) because of my own connections to anime fandom, but you'll hear similar stuff said about the obscenity laws, the drug laws, and even traffic speed limits. The very best example might actually be the US "tax protest" movement, where they reject the abstract concept of income tax on grounds as silly as "because the flag in the courthouse has a fringe on it" and even sillier. In all these cases, the first resort of desperation is to look for loopholes, not to acknowledge that the law has a real point which conflicts with our desires.
That last "public performance" argument - the ticketing and discussion procedure - is a perfect example of what I call an attempt to apply magic to the law: the underlying assumption is that if we do something unimportant - something that doesn't really make any actual difference to the important part of what we're doing - then that will be enough to appease the demands of the law and get the lawyers to go away. No need to really change our behaviour in a way that would actually matter. Compliance with the law is assumed to be about satisfying technical requirements, not about an underlying principle that you have to obey for real. Letter versus spirit. The assumption is that only the letter matters.
But that's not how the law works. If your goals are against the law, you have to accept the consequences of that. You must either give up those goals, or break the law. Choosing to break the law is sometimes a legitimate choice and the right choice. But if you think you want to actually follow the law, it's not magic. You cannot, in general, just find some special words to say or some trivial, meaningless procedure to follow, to get around a law that forbids something you want to do. Large sections of the legal system exist for the sole purpose of eliminating any possibility for those kinds of shennanigans. Obeying the law means obeying it for real; not just in a token way; and judges and other officers of the law can tell the difference. They don't smile on efforts to play silly games with them, which is what these "lucky charm" procedures come down to. The checks and balances don't work perfectly. Loopholes and technicalities do sometimes exist; but you should not depend on being able to find and exploit those as the first resort.
Comments
Matt from 67.158.78.159 at Sat, 04 Aug 2007 16:03:47 +0000:
I think "you can buy exceptions" is actually less true than most people imagine. Even when it is true, the amounts of money involved are big enough to make it not such a viable option for the vast majority of us. Most people who pay lawyers to help them with the law don't end up being shown the secret loopholes to get around the law; they end up being told what the underlying concepts actually are, and advised not to infringe those.
Media player tariffs set to return: yeah, and part of the reason for that is because ordinary people think it somehow isn't for real and that they'll be able to depend on loopholes. If we'd all take seriously that these storebought laws have real consequences, there might be some chance that we'd be less inclined to allow them.
catbear from 216.59.243.150 at Sat, 04 Aug 2007 16:49:01 +0000:
On reflection, I think I have a better analogy. Ordinary people behave towards the law (and specifically the apparent flexibility of it) exactly as if they were a cargo cult. People see lawyers and judges and lobbyists using "words" to affect changes in the law, and figure that if they use "words" too, they can also change the law. Of course, they don't use the right words at the right time in the right venue, so just like the villagers who craft a coconut husk and bamboo stalk radio and never hear BBC, they never actually change the laws or the interpretations of the laws.
Interestingly, of course, since laws are only laws when they are enforced, the cargo cult problems of the radio not working only become apparent when someone is caught and then tries to justify their actions with words that, surprise: have no effect.
Matt from 67.158.78.159 at Sat, 04 Aug 2007 17:33:25 +0000:
Yes, I think the cargo cult is a good way of thinking about it. There are a lot of things you see happening when law is being made and used - but just because you can create those things yourself too doesn't mean you can control the law.
owen from 74.119.251.106 at Sun, 05 Aug 2007 02:20:36 +0000:
Teh copywrite Act isn't "law" it's statute. Law comes from god, and is magical; statute comes from man, and is not.
Matt from 67.158.78.159 at Sun, 05 Aug 2007 02:37:25 +0000:
Which God?
owen from 74.119.251.106 at Mon, 06 Aug 2007 04:55:21 +0000:
THERE CAN BE ONLY ONE!!!! MWAHAHAHAH!
Vilhelm S from 217.146.104.65 at Mon, 06 Aug 2007 07:59:57 +0000:
My favourite example right now of "I want to do it, so it must be legal" is this defense from someone who was sued by RIAA for filesharing:
http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_boggs_070310answercounterclaims
He makes a very impressive list of would-be loopholes, most of which seem about as convincing as the "but there's a fringe on the flag" argument.
Matt from 67.158.78.159 at Mon, 06 Aug 2007 13:08:50 +0000:
I'm not sure I entirely agree. Almost all the reasons in that Boggs brief for why the plaintiffs shouldn't win, really ARE legitimate defenses under the law. As a semi-random example, consider "These damages are unconstitutionally excessive and grossly disproportionate to any actual damages that may have been sustained, and therefore barred." There's actually a rule that says that in such a situation the damages are barred, so if he can support that claim adequately, the court should go for it. Similarly, the stuff about whether the process documents were duly served. It's an objective fact, not an opinion, whether the plaintiffs followed the rules or not. There's a big difference between that - attempting to invoke a rule that really does exist and could apply - and the courthouse-flag fringe thing, which is an attempt to invoke a rule that just doesn't exist.
Defending the "excessive damages" or "incorrect service" claims means arguing about real, objective facts - ARE the claimed damages much more than the real damages? WAS the service invalid? With the courthouse flag it doesn't matter what the facts are. No matter how solidly you prove that the courthouse flag really does have a fringe, it's not going to help you.
Vilhelm S from 217.146.104.65 at Mon, 06 Aug 2007 20:07:47 +0000:
I don't know the details about the correct service, but it was exactly the "excessive damages" claim which struck me as silly.
As far as I understand the situation, the rule about unproportionate damages applies to punative damages, but what the RIAA are suing for is the statutory damages granted by copyright law. The whole POINT of statutory damages is that they are disproportionate to the actual damage incurred. If they where not, you could just sue for the actual damage instead.
Which is why I thought this was a good fit with "that's what the law says, and it shouldn't be a difficult concept". (Of course, just because I wrote that I'm sure this will go all they way to the supreme court who will overthrow previous precendent and set a new standard. :) But hey, that would be a pretty good outcome too, right?)
Matt from 67.158.78.159 at Mon, 06 Aug 2007 20:28:54 +0000:
It won't - that one was apparently settled out of court.
I actually thought the original point of statutory damages was that they were supposed to be a reasonable, and possibly even a little low, estimate of how much damage occurs in a "typical" case, because it may be very hard to establish how many copies were actually made. If the plaintiffs want more, they have to prove it. Much like how on your Canadian income tax return, if you claim a deduction for travel (for instance, travel for medical purposes), you can opt to claim a flat rate per kilometer instead of saving all your receipts to prove exactly how much it really cost. Letting you claim the flat rate even if it happens to be more than your actual cost, saves everyone's time that might otherwise be spent proving, and checking, the actual amount. Whether it's fair to do something similar with court damages is a question worth asking. One thing to keep in mind is that the statutory damages were originally set contemplating a very different situation (commercial publishers selling copies of a few works, without paying for the copyright licensing, and making a profit that's supposed to be forfeited) from the typical file sharing situation (private individual sharing a directory of files for free over the Net, and making no profit at all).
More recently, grossly disproportionate statutory damages in copyright cases have been used as a substitute for criminal prosecution - but that's hardly their most appropriate purpose.
Steve from 165.154.153.112 at Thu, 09 Aug 2007 22:33:32 +0000:
One thing I don't think you considered with your "Law is not Magic" argument is what happens if people choose rational argument #3 above: "This law sucks, and we will choose to break it by holding our event without permission." ... What is the next step after making that decision?
Choices include
A) Saying "Screw you!" in bold letters to the establishment,
B) Hiding away and hoping nobody notices you are breaking the law, or
C) "Attempting to apply magic to the law."
I prefer C) because --it works--. The goal isn't to prove your argument is valid but the goal is to stay in plain sight and slide under the radar --without being harassed--. Harassment is the true aspect that "magic" attempts to avoid and it is successful to a much greater extent than the other 2 methods. Consider the analogy to "legal magic" is the guy who trespasses by walking around wearing a lab coat and carrying a clipboard... this is attempting to have a persuasive document on that clipboard that can be used if challenged... and you don't want that clipboard to be looked at closely, just the bold print at the top.
The "Magic" you are describing as being the delusions of rational people I believe is often the case of rational people keeping talking points in their pocket to avoid harassment. If you are going to perform a victimless crime, your primary goal has to be to prevent the -complaint- of that crime. Convincing people that your crime is not worth -reporting- by _any_ of the flawed arguments you mention above is reason enough to use that flawed argument.
Consider your examples above... I used many of those myself on that private mailing list a year ago, (the ones involving the loopholes, not the "because we want to" ones). When the rubber hit the road, did I really believe those loopholes would stand up in a court? No. I believed then (and still do) that there was/is a near 0% chance of the "law" (lawyer/judge legal documents etc) being the problem. The problem was that had to be avoided was a complaint made to someone in some form of authority. It's also why I wanted to hit a certain president with a clue-by-4 for going out of his way to show the "clipboard" to someone in authority.
BTW if you accept/acknowledge that what you are doing is legally prohibited in regards to patents, then the $$ penalties are 3 times as big. If you think that "law as magic" has no benefits, that's a concrete one. (Too bad it's just patents.)
Steve from 165.154.153.112 at Thu, 09 Aug 2007 22:48:09 +0000:
Oh and one last thing, if you do "Magic with the law" well enough and for long enough, the real true law changes. Copyright and EULA laws are an excellent examples of that. (EULA especially! 2 US states passed the UCITA which is a law that's goal is to make EULAs valid.)
Matt from 67.158.78.159 at Thu, 09 Aug 2007 23:01:55 +0000:
That's a very clever approach, Steve, but I don't think the people I'm talking about are actually implementing it. They seem to be skipping over the "acknowledge that there's something TO get around" step.
Daniel from 130.15.96.170 at Tue, 18 Sep 2007 00:29:34 +0000:
Wonderful piece. The other day I was pulled over by a cop and given an official warning for riding my bike at night time without a light. On the sidewalk too (as I explained, "it's dangerous to ride on the street without a light!") I've never dealt with a police officer before. I felt a mixture of emotions - including appreciation that there were cop cars patrolling in my somewhat sketchy neighbourhood - but one of them was indignation. Do you know who I am?? I almost wanted to say. I am a middle class white canadian! I have *privileges*!
There are a lot of things that contribute to my feeling of being somehow not subject to hard constraints of the law: again my lucky lucky birth, my teenage years having hacker pretentions and being part of the early days of the web where suddenly all kinds of content was available for free (how angry I was when the first ads appeared!) copyrighted or un, also living in a culture where we routinely break certain rules like against possession of pot, and even being a grad student. As compared to undergraduate and high school, it's more like real (upper class) life in that everything is about social capital: all rules can be bent - as long as you haven't pissed people off too much. And there'll be a cost. But most of the people who have immediate power over me are within roughly the same social milieu, they have an investment in me.
I must keep in mind what it's like lower down the social scale, where you're constantly dealing with institutions that are going to be incredibly rigid and pedantic, can't be charmed, don't show you a kind, forgiving face. Or imagine how stressful life is in countries where at every transaction you have a good chance of actually being ripped off by people in authority (if not hurt or wrongly imprisoned), breaking the law themselves. I love that I live in a place and position in society where I look at the police as on my side. And time too: in the 1960s even middle class college students were at war with the police.
I think this is my favourite thing I've read of yours
Anthony from 64.65.224.142 at Mon, 02 Feb 2009 10:01:42 +0000:
I have to agree with Steve from above. The best way to avoid getting in trouble with the law (other than out-right not breaking it) is to never be noticed by the law. They can't charge you for things they don't know about. Or, as the quote goes, "What mother doesn't know can't hurt her." IE "You can't get in trouble if you never get caught."
Matt from 142.150.128.230 at Mon, 02 Feb 2009 12:58:29 +0000:
"Never be noticed by the law" is basically the course of action I recommend in the companion posting to this one, linked from my name on this comment. There I'm talking about a group of people on Livejournal who assert a right to post illegal material *loudly in public* and claim that the corporate backers of Livejournal should defend that right. I say: apply some discretion or accept the consequences.
Really, the whole "not magic" point could be reduced to a very simple concept: there are no Monopoly-style "Get Out of Jail Free" cards. Many people today seem to think they are carrying such cards, whether the actual language on the cards is "First Amendment" or "We Are Not Commercial" or something more nebulous. Then when they try to play the cards, they get a rude surprise. Even if you can end up winning a court case, it's never as easy as flashing your card and having the other side just go away.
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catbear from 216.59.243.150 at Sat, 04 Aug 2007 15:44:29 +0000:
There is a magical totem that makes your argument invalid; it is called money. This totem can be traded to expert practicers of magic, called lawyers, for handwaving and mysterious incantations at the altars of the priests, called courtrooms. What happens at these altars can change the Law and the Interpretation of Law in dramatic and subtle ways.
Perhaps you have noticed that media player tariffs are set to return?