RESPECT FOR THE LAW
IVAN HOFFMAN, B.A., J.D.
Let me define what I mean by “respect for the law.” This is not merely the adherence to the letter of the law or even to the spirit of the law. That we all must do and thus that is a given. However, merely complying with the law is not the same as respecting the law. Respect for the law of course includes complying with the law but respect for the law goes beyond that threshold. Complying with the law does not of necessity include respecting the law but respecting the law does include complying with the law.
In its simplest incarnation, the difference can be summarized as follows: “Just because you can doesn’t mean you should.”
Respect for the law is not merely not doing something negative but is actually doing something positive. Respect for the law is behaving in such a way that you act affirmatively to manifest a respect the law. Respect means acting with deference and esteem, even awe for the law, and with a sense that the law has value over and above the immediacy of the application of the law in a given situation. It means that we nurture the law, help the law to evolve and in turn allow the law to help us evolve as well. Without law there can be no civilization. Indeed, it is the law that creates civilization. (Read “The Law”)
Acting affirmatively is much more difficult than merely refraining from action perhaps in large part because it requires us to recognize and in turn manifest a sense of how our own conduct impacts on the totality of all conduct, generally referred to as “society.” It is not to be left to others to respect the law, to advance society. The only “others” are we ourselves.
Manifesting an affirmative respect for the law says that you expect to raise the level of discussion to a higher plane. And that you expect others to follow. If all we seek is minimum compliance with the law, then all we will end up with is a minimum compliance world, a world without excellence. We of course want to have a world in which everyone complies with the law. But we deserve a better world than a merely compliant world. Striving to reach a higher goal in our business and legal behavior can help create a maximum world, a world in which everyone actually respects the law as opposed to a world in which all we have is begrudging compliance.
Demonstrating respect for the law requires modeling appropriate legal behavior. Merely refraining is no where near as important as a teaching tool—for “society” as well as on more personal level—as is affirmatively modeling. Affirmatively modeling requires us to have the sense that our conduct actually matters in the larger world, in that “society.” It often appears that few believe they have any value in the world outside of their own selves. Believing that we are small generally produces people who are small. And thus believing, they then act to make their beliefs their truths. Believe small, stay small. Failing to dream creates its own reality.
It is a difficult thing to go against the trend of something as large as society. The tendency often is to “go along to get along.” But the difficulty is part of the journey.
In the words of Robert Browning, “Ah, but a man’s reach should exceed his grasp/Or what’s a heaven for?”
One of the areas in which this lack of affirmative respect for the law is prevalent is in regard to “fair use” of intellectual property rights. Although I will focus in this article on “fair use” under the copyright law since that is most prevalent form of disrespect, the issues discussed in this article apply as well under the doctrine of “fair use” under trademark law. (Read the numerous articles on my site dealing with these “fair use” issues from a substantive point of view on the links “Articles for Writers and Publishers” and “Articles About Trademarks and Domain Names.”)
Ironically, those who make their living from copyrights (which I assume is virtually everyone reading this article since I am an intellectual property attorney and write about intellectual property issues and that’s probably how you ended up on this page) often seem to be the first to disrespect the rights of other copyright proprietors, whether intentionally or inadvertently, and this is so often because these people are the most likely users of other parties’ rights. These users of others’ intellectual property rights often do not understand, or if they understand, do not follow that understanding, whether intentionally or inadvertently, that modeling appropriate behavior requires respecting the rights of others even when it is inconvenient or expensive to do so--especially when it is inconvenient or expensive to do so--just as the First Amendment requires us to protect even speech that we find distasteful—especially speech we find distasteful.
Whether disregarding the rights of others is intentional or through inadvertence, the effect on perpetuating the spiral of disrespect is the same.
We have struggled for over 200 years to create a nation where we are governed by the rule of law, not the rule based on the whims of individuals, whether such individuals be kings, presidents or anyone else. And yet, when it comes to using the copyright rights of others, many people abandon the need to model appropriate legal behavior and instead seem to find no problem in using these rights according to their own personal, arbitrary and, frankly, often quite whimsical standards.
For example, the user of the rights may make some sort of determination of what the user believes to be “fair” based solely on the user’s own values or convenience or whims or some other personal preference or often on a complete misunderstanding as to the requirements of the law, and then proceed to use such copyright rights without asking the owner of those rights whether the owner will allow the user to use those rights.
Note here that this type transaction is not an arms-length transaction since by definition the owner of the intellectual property rights does not know about such use and thus has not had an opportunity to negotiate or even comment on the use of his, her or its rights. (Read “Self-Interest” and “Capitalism”)
But here is the difference between merely complying with the law and instead acting affirmatively to respect the law. Failing to respect the law, as I am using it in this article, does not mean that the user is not complying with the law. Indeed, as I posit in this article, complying with the law is an essential element of respecting the law but that the user may be in compliance with what the law requires is not the issue. Even if the user is complying with the law, the user still may not be respecting the law. It does not matter if, in the long term, any such decision on the user’s part may turn out to be legally right (although if you read the articles above about the substance of the “fair use” law, you will realize that almost no one can say with any degree of certainty in advance whether any such guess will be legally correct). The issue for the purpose of modeling appropriate behavior is not ultimate “right” or “wrong” from a legal standpoint, decided after years of litigation and appeals and the consequent legal fees and costs. (Let’s not forget that “fair use” is used as a defense in the event of any claims and the purpose of preventive law is to seek to avoid having such claims made. As I have said many times, “Help me is almost always cheaper than fix me.” There are of course significant and concrete benefits to licensing in addition to the potential savings in terms of money.) The issue instead is acting affirmatively to ask permission and in the process of doing so, going beyond the literal language of the law and taking the affirmative step to say to the rights owner: “I respect your rights and your creation enough to ask you if I can use your rights and your creation.”
In other words, just because the user may not be wrong is not the same as being right. Being right includes not being wrong but goes beyond merely not being wrong. Or, as above, “Just because you can doesn’t mean you should.”
Often, the user may then seek to rationalize the use of others’ rights without permission by believing that because the user has not been sued, that somehow that makes the initial act “right.” There can be many reasons that the user has not been sued including but not limited to that the project has been so unsuccessful that it has not made the radar screen of the rights owners. Or for any number of a wide variety of other reasons. However, under any circumstances, the failure to be sued does not prove that the threshold, arbitrary and whimsical determination was legally correct.
Further, the user may actually believe that since it would be inconvenient or expensive to license rights, the user decides that the user will take a chance that no one will find out and that the user will not be sued. In such an instance, the user is actually faced with the conflict that in the user’s heart of hearts the user actually wants the project to fail so as not to be discovered, all the while saying the user wants it to succeed. (Read “Set To Fail”) Forgetting all the issues relating to the morality…what kind of way is that to run a business? And how does the user sleep at night?
And the really sad thing is that if the user does not have this conflict, if the user does not lose sleep over the use of another’s rights without permission, then what does that say about society as a whole that such concerns are not part of our individual and collective consciousness?
And not part of our collective respect for the law.
As a practical matter, in the digital world of today, in order to take someone’s intellectual property, all you need is a mouse. There are no meaningful, long-term technological fixes to prevent the taking of our intellectual property. Sooner or later, someone is likely to find a way to hack and break the latest technological fix. Therefore, as a philosophical matter, if you want to protect your intellectual property, the only way to do that is to model appropriate behavior and protect other parties’ intellectual property. And in doing so, you elevate the discussion and model behavior that you would like others to follow.
The law can be a source of significant societal change and growth. We have seen this countless times in our history, from abolishing the “separate but equal” doctrine, to providing suffrage for all and many other instances. But as indicated, the law exists because we all agree the law shall exist and that agreement has to be based on something more than merely personal convenience or individual whims. We have to be willing to accept laws that may be inconvenient for us on a personal level because we see how the law can benefit us on a collective level. “A rising tide,” it is said, “raises all boats.”
The law, indeed democracy overall, requires effort on our individual parts to make these worthy ideas real. Part of our agreement is that we agree that each of us has our role in both creating and respecting the law. Stepping out from the crowd requires a sense of self-worth and a willingness to endure the “inconvenience” that going it alone often creates. But that inconvenience is far outweighed by the sense that we may be creating a new set of values.
In the words of Ralph Waldo Emerson, in “Self-Reliance:”
The law does not exist just for everyone else to respect.It is easy in the world to live after the world's opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude.
FOLLOW UP: Read about the California peer to peer file sharing law in the article called “California’s P2P Law.”
Copyright © 2004 Ivan Hoffman. All Rights Reserved.