IVAN HOFFMAN, B.A., J.D.
I love the law. When I hear legal scholars speaking about the law, I find myself moved to tears. That we have nothing but an idea separating us from chaos is quite remarkable when you consider it.
But the law is an elusive and indeed, in many instances, a fragile thing. There is no “one size fits all” concept of the law. These qualities are part of its beauty. It can be molded to fit a wide variety of situations. However, that elusiveness makes some people uncomfortable since we often seek constancy. We would often like to have things “carved into stone” as it were. But it is the very nature of the law being so elusive that gives it its power to have lasted as long as it has in this country.
The fragility of the law is due, in large part, to the fact that there actually is no law outside of that which we elect to have as law. The law is not self-fulfilling. Writing some statute into a code book, having a court interpret a law, does not make anything happen. Law only is effective to the degree that we, the individuals who make up our society, elect to have it be effective. We are totally responsible for the continuation and effectiveness of the law. If enough of us agree the law or a given aspect of the law is not reflective of who we are as a society, that law goes unenforced or in some instances, is repealed or overruled by court decision. As but a few examples, counting slaves as 3/5ths of a “free person” was included in the original Constitution (Article I, Section 2, Clause 3) because it was reflective of the dominant attitude of at least the more powerful segments of society at the time, later to be amended out of existence, at least in law. “Separate but equal” while set forth as a standard in 1896 in Plessy vs. Ferguson, was found to be invalid in 1954 in Brown vs. Board of Education of Topeka because the prevailing attitudes of society had changed. Prohibition was enacted by Constitutional amendment and then repealed by the same process since it was found that the vast majority of those in this country refused to have their morals determined by the act of a few.
We now have huge legal issues related to online infringement of various forms of intellectual property in part because our technology has made such endeavors as easy as clicking with one’s mouse. I focus on this issue among the many other issues presented to the law because my practice deals with intellectual property rights. But these issues come, at least in part, because we as a society have created a climate conducive to creating the issue. This online infringement issue is, at least in part, a demand-side issue since it appears to reflect the “if it’s on the Internet, it should be free” attitude and that is, in turn, a reflection of some elements of society. Where along our collective path we developed this inappropriate idea is not clear to me. For a substantive discussion about these issues read “Napster and Fair Use” and “Napster, Grokster and Morpheus.” Also read about the California peer to peer file sharing law in the article called “California’s P2P Law.”
Since we are all simultaneously both creators of intellectual property as well as users of other parties’ intellectual property, it is not clear how some believe the free taking of the others’ rights produces a net benefit. For instance, each of us that composes an email is creating intellectual property. (Read “C Rights in E Mail” on my site.) In the truest sense, the only way we can each of us protect our rights to our intellectual property is through the protection of the rights of other parties. Modeling appropriate behavior is the best defense against loss of your own rights. But at least at present, we, collectively, have apparently not yet progressed to the point where such an attitude prevails. Thus, while copyright and other laws exist to protect intellectual property, we, as that collective society, do not appear willing to have those laws applied, at least where our personal interests to obtain music and other forms of intellectual property for free appear to “conflict” with the law.
So the law is now and always has been a reflection of the values of the society in which it is found. But in truth there is no such thing as “society.” Society is merely the totality of the input that all of us, individually and through our institutions such as media, business and the like, create. “Society” includes as well all of those same inputs of everyone who came before us including parents, grandparents and others not related to us individually. But in the end, all of that input came from a person, not a thing called “society.” Some person created each value that we now attribute to “society.” When enough of us adopted that same value, it seemed to become some sort of accepted truth. Some of those “truths” became our law.
Thus, the law is a reflection of each of our individual values, writ onto the larger canvas that we, for convenience if not literal correctness, call society. Having a “thing” to blame it on excuses our individual responsibility. We are the law in a very real sense. We are part of its creation and it reflects who we are.
It follows that if the law is reflective of our individual values, then we have to examine those individual values and how we thus play a part in the shaping of the “societal” values. It requires a sense of ourselves. It requires a sense of our individual power and yes, responsibility for who we are as a “society” and the laws that reflect that society.
As we collectively and individually go through the transitions that are now and will remain an integral part of the development of the Internet in particular and the law in general, each of us must examine what role we play in those transitions. This may make some uncomfortable since we are not generally given to accepting responsibility for our own conduct.
I believe we are in a great period of transition very much on the scale of the Industrial Revolution. But like that and other “revolutions” it is hard to see it during the time we are in it. It takes a significant period of time to even see a revolution of that or this nature in process and certainly to understand the nature of the values at play now.
And the role the law plays in that revolution and in shaping those values.
And the role we play in what the law is and can, in the future, become.
© Copyright 2003 Ivan Hoffman. All Rights Reserved.