Lawrence Lessig

Byte the Bullet!

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The estimable intellectual property theorist Lawrence Lessig has an interesting op-ed in today's Wash Post. The Stanford law prof suggests that one possible "silver lining" to stupid attempts by Congress to hold makers of peer-to-peer (p2p) technology such as Napster responsible for copyright infringement is that such laws would make gun makers similarly culpable:

If Congress passes this bill [about p2p technology], on what principled basis can it then refuse to hold gun manufacturers responsible for the crimes committed with their technologies?…

The parallels are unavoidable. Like p2p, firearms—including assault weapons and cop-killing bullets—cause harm. But also like p2p, guns—as the NRA and its followers will tell you—have "non-infringing uses" too. Thus, the gun lobby says, manufacturers should be exempt from responsibility for the crimes their customers commit. Guns don't kill people; people kill people….

That argument will be much harder to sustain if Congress does to p2p what it has not done to guns. Of course, the same point is true of p2p technologies. It's not Kazaa that infringes Madonna's copyright; people infringe Madonna's copyright.

Whole thing here.

Lessig thus makes a very strong case against holding p2p tech makers responsible (and I think he knows this). And it's worth pointing out that Congress doesn't act from principle, so regardless what happens, they won't feel a need to act consistently in any sort of legal or intellectual manner.

Reason's Jesse Walker interviewed Lessig here. And David Post reviewed Lessig's latest book, Free Culture, for us here. And Lessig's own blog is here.

NEXT: Dumb Blonde Law

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  1. I hope Congress doesn’t harm the most important industry for growth in the United States by acting against p2p. But if it does, I don’t see how it can, in all honesty, avoid doing the same with regard to firearms.

    Obviously the problem with Lessig’s argument is the use of the terms “Congress” and “honesty” in the same paragraph. As you mention, there is no reason to believe that any consistent or logical legislation will come out of this on either question. In the end, it’s going to come down to where the money is.

  2. Sounds like a clever attempt to get the gun lobby interested in tech rights.

  3. I’m not sure I agree with his assumption that the body of federal law must be internally consistent.

  4. File this in the massive folder titled: “Arguments libertarians Wish were Persuasive to Non-libertarians.”

  5. I don’t see how the potential anti-gun application is a “silver lining.”

    It’s just an example of how authoritarian precedents in one area of life end up being used in others. So Asscrack can say, re the “Patriot” Act, “it’s just giving us the power in fighting terrorists that we already have in fighting drugs–what’s the big deal?”

    The big deal is that the powers shouldn’t have been granted against drugs in the first place. Likewise, people who propose using the IRS’s jackboots to go against non-tax offenders, like deadbeat dads.

    It’s interesting that civil forfeiture and other aspects of administrative law, which is essentially unregulated by common law standards of due process, all had their origins in tax law. We have dozens of government agencies with the legal authority to seize property and make arrests without warrants or jury trials–in essence a transplant of British prerogative law, based on the civil law tradition–and it all had its start in this country with tax law.

    The point is that somebody with a big hammer starts looking for nails–you go with a winning strategy.

    (And no–you don’t have to be some kind of nutcase who goes ballistic over fringes on the American flag to find this stuff troubling.)

  6. Makes me want to go to law school. I feel so left out.

  7. Guns don’t kill people, gaping holes in vital organs kill people.

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