Stanford Law Professor compares Copyright Law to Prohibition

Lawrence Lessig, a professor of Law at Stanford University makes an interesting case that US-style Copyright Law that makes peer to peer copying illegal, and imposes ever more extreme criminal sentences, is the new prohibition, his criticism is not whether the law is ‘right’ or ‘wrong’, so much as unenforceable and resulting in a generation growing up believing that the law is an ass.

The following are quotes from his Op-ed piece, published in a popular international monthly magazine, Playboy:

“An important test for whether a certain law should exist is whether that law will work—not because we shouldn’t clutter the law books with useless or ineffective regulation but because a culture swimming in laws that are not respected is a culture that breeds contempt for the law and for the rule of law.”
“That is precisely what is happening with our kids. In the decade since we began to wage this copyright war, we have not reduced peer-to-peer file sharing. It has only increased. We have not reduced the class of kids engaging in behavior they know to be wrong. We have only caused that class to grow, as more people know the behavior is illegal and engage in it nonetheless.”

“Measured along any dimension of success, this war has been a failure: Artists don’t have more money, businesses haven’t had a clear set of rules to compete against, and a whole generation of children has been raised to think the law is an ass—and an ass that is to be ignored.”

“Congress should move on to the task of remaking the copyright system in order to make sense of digital technologies, not fight them.”

It must be appreciated that there is something arbitrary in Copyright Law, both in terms of what is covered, for what periods before reverting to the public domain, and what exceptions are considered fair use. Copyright started in Britain as the Statute of Anne, as a means to protect the investment made by publishing houses in printing books. Lessig’s position is actually a well established principle in Hallachah, Jewish Law, is that ordinances that the public can’t fulfil should best be avoided.

Across the Chanel in Britain, ironically as the opening act of an iTunes music festival, the comedian  Stephen Fry lauched a similar attack, criticizing the entertainment industry’s pursuit of the file-sharers, he suspects “that my business – the film business, the television business, the music business – is doing the wrong thing”. He described what he called the aggressive prosecution around the world of those who illegally download. It did no good, said Fry, to label these people as criminals.

Thus, there seems to be a growing counter-culture against peer to peer copyright enforcement that includes US lawyers, UK actors, Swedish, Swiss and Canadian politicians. The French high court recently ruled illegal the three-strikes-and-you-are-out legislation proposed by the French President as unconstitutional. 

So as not to be accused of bias, we note that Novelist Mark Helprin has published a polemic titled “Digital Barbarism,” that claims that copyright should extend for ever.

Helprin’s position is not new of course. This was the position of Sonny Bono and seems to be the position of Disney (at least regarding their animated movies, if not the fairy tales and stories on which they are based).  It will be interesting to see how this pans out.

Categories: Copyright, News, Opinion

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