KJ (owlmoose) wrote,

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Above, around, and through the law

Fascinating series of articles from Slate on how certain kinds of lawbreaking is tolerated and even encouraged in the U.S. Thanks to amybang for the link.

The main thrust of the article is the ways in which laws that are unpopular but difficult to change or take off the books for political reasons can de facto change, through selective enforcement. The whole thing is worth reading, but naturally I found the sections on obscenity and copyright to be particularly compelling. The author, Tim Wu, comes up with a concept he called "tolerated use", which basically refers to the blind eye that so many copyright holders turn to fanworks and certain types of file-sharing.

This spring, at the Max-Planck Institute in Bonn, Germany, I gave a talk on the phenomenon of tolerated use, and in the audience was Stanford professor Larry Lessig, a Thomas Jefferson figure in the information revolution. "So here's what I want to know," he asked. "Why should we tolerate tolerated use?" His point: If you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? Surely the right answer is to fight for reform of the copyright law: Have the law declare clearly that most noncommercial activities, like fan sites and remixes, are simply beyond the reach of the law.

Lessig has a point. It is hard to see how anyone could endorse a system that declares many inoffensive activities illegal, with the tacit understanding that the law will usually not be enforced, leaving sanctions hanging overhead like copyright's own Sword of Damocles. The symbolic legal message is preposterous: "Remember, copyright is important, and you're breaking the law and you may face massive fines. But on the other hand, your site is totally great, so keep going!"

I think everyone in fandom has felt this way, that we're just one C&D letter away from destruction. Maybe we're not really at risk in practice, except in certain cases (the article talks about the WB and their zeal in going after HP porn, for example), but it would be great for the law to acknowledge the practice. But that's kind of the whole point of this article -- it's one thing for the government to turn a blind eye to things like fansites, it's another for them to risk angering big forces like Big Media/the religious right/the heartland (to bring in the other segments of the article, which cover drug use, religion, and immigration). So we're stuck with a hodgepodge.

Anyway. Thought-provoking series, and a fairly quick read. Recommended.
Tags: civil rights, current events, fandom, free speech, politics, the media

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