I've been particularly interested in how the Internet is affecting law and society for several years now. I've seen a lot of debating, litigating, and legislating, but there is little or no consistency in the rhetoric.
In the past, we've had legal frameworks that allowed us to approach these issues with some degree of consistency. Copyright was built on an ethical framework built on certain simple ethical principles: A creator should be given the opportunity to benefit from his work. A creator deserves credit for his work. The market should be grown. A created work must eventually be released back to society, as the goodness of public ownership exceeds the goodness of continued private ownership for the society. These and other simple principles are the foundation of copyright law, even if we have not followed them perfectly.
But communication has changed radically since the precepts in the previous paragraph were first propounded. In all the debating, litigating, and legislating, virtually nobody has examined the ethical foundation of modern communications. Is it any wonder that the resulting legislation and court decisions have been largely garbage? (See B for the standards by which I declare these things garbage.)
This essay exists to correct that major oversight. Indeed, the situation has changed, and due to the complicated nature of modern communication technologies, attempting to create an ethical foundation is decidedly non-trivial. This is not to say that the foundations we built the current legal system on have somehow become irrelevant, but how the principles play out in real life is no longer obvious. Rather than starting with a desired conclusion and making sure I end up with them, I examine the situation afresh, hopefully shedding light in corners you didn't even realize existed. In many cases I myself was surprised by the results, particularly by the Death of Expression chapter, when something I thought would be easily salvagable turned out to be a complete loss. The final goal of this essay is to try to construct such an ethical foundation, and from it derive some sort of useful framework for thinking about the ethical problems, leaving the final construction of the legal framework to Congress and the courts.
I do not respect a person, group, or ideology that defines itself solely in opposition to something. Opposition should flow from positive opinion about what should be that happens to contradict somebody else's ideas. To respect my own opinions about communication issues, I feel it is necessary to thus propose a system that describes how we should be doing things, because it's simply too easy to take potshots at an existing system when you have no responsibility to replace it. It is also too easy to paint one's self into a corner when one is simply being critical of things; without a coherent vision, it's easy to end up accidentally contradicting one's self, which I believe has happened many times, even by groups like the EFF.
I run a weblog called iRi, which is descended from a weblog tracking these issues and trying to synthesize all the various stuff that's happened over the last few years into some sort of positive, cohesive whole. It became clear to me quickly that the weblog format was insufficient for the task. There is so much to cover that it simply cannot be done in small chunks, because there is so much context I need to lay down. So instead of trying to lay this out in a long series of weblog posts, I started writing this essay. As you'll see, each chapter builds on the last and there's a high degree of cohesion in this essay; trying to post it in little chunks would never have worked. Now that this essay has been written, I have stopped posting so much stuff about these topics as I feel it is redundant to what I have written here.
I do not ask you to swallow my views unchallenged. Indeed, I encourage dissension; the odds of this essay being perfectly correct are small. But I hope this will stimulate you to think about these issues in new and hopefully profitable ways. There are ideas in here that I have not seen anyone talk about, even in the years of debate I've been watching, and even in the years it has taken me to write this essay, and the years it has been sitting here largely completed. Even a year after the first publish date I think it is still ahead of its time.
This essay alternatively talks pure ethical theory and about legal concepts, both current and future. The connection is that law is always used in this essay as ``applied ethics''. In the real world, it is not always the case that laws reflect applied ethics; one need not search too hard for laws that seem to be applied corruption. But we will treat the law in this manner, especially as the ethical ``action'' of the law is often more revealing then the ``words'' of theory, and transitions will not be labelled, as that would cause too much bloat.
This essay was written in the United States, about the United States. All references to ``this government'' and ``the people'' refer to the United States Government and United States citizens. Conditions in your country may vary... but as I am talking ethical theory here, the contents of this essay still apply.
Is there anything more boring then a typographical note?
While I am providing a PDF version, this essay is intended to be native to the web and uses a lot of links. Unfortunately, the system I'm using to publish this doesn't always handle links as well as it could. Links will be given as text, and may not be live on the web until the final version of this essay is published. Unfortunately, long links may go off the side of the printed page as a result. Sorry. You weren't going to be able to click on them anyhow.
Footnotes in this edition are now solely used to provide references for facts, and parenthetical ramblings have been moved into the main text or deleted. Web readers will now not miss anything if they skip the footnotes.
Now, on with the show!