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The law is not magic

Fri 3 Aug 2007 by mskala Tags used: ,

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.


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