Building on my last post, which focused on the “exclusive right” granted by the first U.S. Congress to authors and inventors, as guided by the U.S. Constitution, let me address briefly the rights that users of creative works often claim for themselves. I am an avid consumer of creative works myself, and understand that it’s natural to feel a “right” to do something with a creative work, particularly when I’ve paid for it. I’ve discussed in this space the notion of a rights market, where in fact we pay for a bundle of rights to a work, and thus something can be free (perhaps ad-supported) and have varying price points beyond that based on permitted use. What I’d like to discuss today is ways a user of creative works can fight for his or her self-perceived rights to that work, regardless of price point.

This discussion is prompted by an interesting piece in ZDNet, where Christopher Dawson urges people to “stop sharing music.” He doesn’t make a moral argument against so-called “file-sharing,” or discuss the harms that can come to creators from sharing, or address the larger undermining of our legal rights structure from such behavior. Instead, he looks at recent jury verdicts against music file sharers and essentially says “Don’t break the law!” Here’s my favorite portion:

My kids know better than to download and share music; I’ve certainly lectured them enough and they use their allowances and money from jobs to purchase music. However, even at home, I’ve blocked all ports associated with peer-to-peer networks.

That sounds like my home. My fourteen-year-old has taken to the message aggressively because she wishes to earn a living as an artist someday. She is helped in her purchase of legal music by some generosity from her father. My ten-year-old son has taken to it more because it hasn’t proven to be an inconvenience for him; I allow him to build his iPod library from my music collection and that of his older sister (yes, he has songs on his player not acquired by him personally), and he knows as he more fully develops his own taste I’ll help him out financially as well. I recognize not all kids are as fortunate.

I also feel that Mr. Dawson’s message to minors is an important one, and that is why I’m so pleased at the success of the Copyright Alliance Education Foundation.

But what if you agree that sharing of unauthorized creative works is illegal, but feel it shouldn’t be? Should you encourage civil disobedience, in other words not just defend file sharing but practice it and encourage it, in hopes that sheer embrace by society will force change by rightsholders? Or should you try to create a movement for social change, seeking to convert others to your way of thinking and eventually persuade our elected officials to change the law while adhering to the law?

On the first I would say “no,” on the second I would say “knock yourself out.”

I’ve raised my children to be skeptical of authority and to question everything; I can’t tell you how many times I find myself regretting it. But authority should be questioned — I am much more in the camp of Aristotle or Locke in this respect than that of Plato or Hobbes.

The method of questioning is key, however. Are there times laws should be broken? I would think the answer is yes. If a law is not only arbitrary but causes real harm or subjugates one person or people below another person or people, a case could certainly be made. But copyright is not apartheid.

The comment field in Dawson’s story is typical for such articles, much argument over physical vs. virtual goods, semantic debates of “theft” vs. “infringement,” defense of artists and denouncements of distributors (sometimes by the same person). There are of course many insults to others the insulter has never met, and suggestions that the individuals with differing points of view are morons and shouldn’t even be participating in the discussion.

But there was also a thread of the issue of user rights, with an early reference to the notion of user rights as a civil rights issue. That was quickly knocked down by others and the dialogue shifted. But at the risk of seeming to attack a straw man already hemorraghing its stuffing, let me note that anyone has the right to see further limitations on creators’ rights as such a movement.

If one feels aggrieved by our current system of U.S. copyright law, if one feels their creativity or speech is being stifled, if one feels they are suffering undue restrictions on legally procured works, if one feels business models based on rights and licensing are no longer legitimate when creative works are nonrivalrous, then there are many ways one can act.

One can speak out on blogs. One can financially support like-minded institutions such as the Electronic Frontier Foundation and Public Knowledge. One can promote published works by authors of like minds, such as authors who feel file sharing should be legalized and do rationalize file-sharing behavior but are careful in saying that illegal activity shouldn’t be condoned. One can stage protests, hand out fliers at music concerts, arrange meetings with members of Congress, speak out at town halls, form political parties, channel political donations based on your beliefs, testify at public fora, the list goes on and on.

Performing an illegal activity and rationalizing your violation of the law by calling the law unjust and claiming you are actually in the right is probably not the best way to go. Call me old-fashioned, or a dinosaur, as one commenter called Dawson.

In fairness, I see a lot of online commenters insist that they do not file share, that they follow the law, but then say the law is asinine and needs to be changed. This blog is not critical of them, it in fact in an odd way celebrates them because they are acting as active participants in a lawful democracy. I may disagree with them, but I celebrate their freedom of speech and their desire to use it.

No, my issue is with the rationalizers, the ones who think like Mr. Tenenbaum. The recent kerfuffle over U.S. health care reform shows how powerful united voices can be; make yourselves heard, but know you will be taken more seriously if you are following a law, even if you advocate for its revision.

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This entry was posted on Tuesday, August 18th, 2009 at 10:14 am by Patrick Ross and is filed under blogging, capitol hill, copyright law, copyright opponents, creators, culture, fair use, market forces, p2p, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.