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Re: Jim's copyright comedy

At 02:08 AM 1/5/00 , Reese wrote:
>Hi Greg,
>At 10:16 PM 1/3/00 -0800, Greg Broiles wrote:
> >But that's not the
> >legal system in place in the United States now, and I don't think we're in
> >great danger of experiencing it anytime soon.
>but that's part of the problem right now, and we are in great danger of
>experiencing more of it.

That might be the case, but lying to ourselves or others (as Jim is wont to 
do) about the current state of affairs is silly. I think it's perfectly 
reasonable to want things to be different; but an honest evaluation of the 
current situation is a strong position from which to begin to make changes. 
Strategies derived from an understanding of the present condition based on 
equal parts fantasy and ignorance is unlikely to lead to anything but 
frustration and failure.

In particular, so long as Jim continues to confuse himself and others about 
what the law actually is, he's and those similarly confused are unlikely to 
make much progress towards changing the law to be what they wish it was. 
He's announcing victory in a struggle he has yet to engage in. If he were 
on the Supreme Court, he could change the law merely by asserting that it 
said something different - but he's not.

There's a common (and incorrect) idea that it's possible for anyone to 
change the law to mean anything merely by asserting forcefully enough that 
it ought to be different, or by presenting the proper clever argument in 
any forum at any time, and that the remainder of the legal system will 
magically reconfigure itself to conform to the new clever argument. That 
only works on TV. The law changes very slowly, for the most part - 
sometimes it looks fast to people who haven't been paying attention to the 
changes, but that's because they weren't paying attention. That slowness is 
generally good, because it gives people a chance to reconfigure their lives 
and behaviors around the coming differences.

Some people are fond of a fantasy they have about the US legal system - or 
sometimes all western legal systems, or sometimes all legal systems - that 
they're based entirely on contract law, and that it's possible (with, say, 
3 hours of part-time effort on the odd weekend while drinking beer) to dig 
down to the basic contract, and find a tricky argument which says, 
basically, "I win and everyone else loses. Ha ha!" This is wrong in two 
important ways - first, there is no deep ur-contract underlying the US 
legal system (or any other, that I've ever heard of). If you want to 
imagine anything down there under the muck of precedent and ritual and 
tradition, it's violence, not contract. Second, there is no court to whom 
one can present the tricky argument; and even if there were, that's not how 
contract law works.

We've all got our own pet superstitions about the world - some people want 
to believe in fairness, others in contract, others in supernatural 
omnipotent beings who are prudish about oral sex - and that's great, but it 
is useful to remember that they're not universally shared, and they're 
mostly about how we want the world to work, not how it actually does. If 
Jim sleeps better at night thinking that copyright is really a complicated 
form of contract, that's great, but that assertion is very similar to a 
child's belief in Santa Claus - e.g., it's harmless if they don't try to 
rely on it too strongly.

Greg Broiles
[email protected]
PGP: 0x26E4488C