One of the most back-asswards aspects of democratic systems is the legal system. Especially when dealing with issues related to intellectual property and copyright. Most everyone is familiar with the Digital Millennium Copyright Act and how big media (record labels, film, and print) use this device in order to strong arm people who are simply doing things that most other people are doing en mass.

For example, copying video, music, or graphical images for personal use. 

One of the essential problems within a society is the fact that once an idea is put out into a public space – it is there for everyone to see and make use of regardless of the mechanism by which it was originally distributed. You can’t stop an idea once it has been released to the universe.

One of the other problems is that for certain ideas, there are only a limited number of ways of expressing that idea  regardless of when anyone in the past 10,000 years came up with it. The law of additive identity in mathematics for example (a + 0 = a) is true in all cases and cannot be expressed in any other way. Once that fact is known and ‘turned loose’ in society, you can’t go back and start charging everyone a royalty every time they add zero to a number simply because you were the first one to come up with the idea or the first one to actually ‘codify’ that specific truth.

Similarly, for a society to work, there has to be agreed upon standards by which everyone knows what the heck everyone else is talking about or trying to say. For example, I could re-express the additive identity by saying ($ ~ 8 / a). If you refine the rules of what makes a mathematical expression understandable then you could, in theory, come up with hundreds of different ways of expressing mathematical formula that wouldn’t infringe upon the original owners intellectual property. Of course it would become quickly apparent that no one would understand anyone else. While this might be a great boon for Accountants, for the rest of us we would quickly start to adapt the way in which we felt our network of contacts was working irrespective of whether it was legal or illegal.

This is because the underlying require to understand each other and build community will always trump individual rights to make a living from intellectual property which it is unable to control the methods of distribution. Which, quite plainly, sucks if you are the one that comes up with the idea in the first place, but is essential for society as a whole to grow and prosper.

What got me on this topic was a twitter I received yesterday talking about Lodsys’s harassment of Apple App developers over the use of the “upgrade / buy now” button which Lodsys claims to own the intellectual property for. This bothers me on two very important accounts

Scales of Justice Don’t Balance

The fact that large corporations, in order to enforce their claim to a copyright infringement, which in many cases is dubious to begin with, will go after those people who are unable to fight back. As a society we deem that the right to prosecute or to undertake a defence should be born by the people who are involved in the case.

Unfortunately the cost of a legal prosecution or defence is so expensive that many people cannot afford to undertake such an endeavour without potentially going into bankruptcy. The justice may be blind but the scales are almost always tipped in the favour of those with the legal team with the greatest number of resources behind them (money, labour, etc..).

As a democratic society, it is in the best interests of everyone concerned that when issues go to trial, both sides have equal access to appropriate resources in order to properly represent legal research findings, case law, and opinions. When one side can bring to bear unreasonably overbearing legal representation, such as in the Sony vs. Hotz case, the results are devastating not just for the immediate financial settlements, but also for the in appropriate legal precedents that are now entrenched in case law which can be used by others.

When your view of the universe is so myopic that all you see is the immediate financial / commercial implication, what remains is the start of a slippery slope which others will use to their advantage regardless of the harm to society as a whole.

Abdication by Governments to Intervene in Cases of Fundamental Justice

This brings me to the second fact that bothers me about the implication of cases like this. The abdication by Governments to represent the long term interests of the societies that they govern.  In Canada for example, Section 7 of the Canadian Charter of Rights and Freedoms states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The principle of fundamental justice has many aspects which must be satisfied including principles of

• Arbitrariness (i.e. lack of)
• Vagueness (i.e. lack of)
• Requirement of Mens Rea (i.e. a guilty mind)
• Right to silence
• Etc..

Two specific aspects of the concept of fundamental justice are the principle areas in which governments fail to live up to their requirement to promote a healthy and prosperous society.

The first is the idea of ‘overbreadth’. This is usually defined in the context of government brining “disproportionate interference” with an individual’s rights. The problem here is that the concept needs to extend to all legal proceedings, not just those involving government stakeholders as the government holds in-trust the outcome of any proceeding for which overbreadth occurs.  While it may not be possible in all cases to identity which cases brought before the Court are more important than others, there should at least be some independent review which establishes the protection of the public from corporations and others whom would use the principle of overbreadth to their unfair advantage.

The second is the right to make full answer and defence which includes the right to consult a lawyer. The problem here is that not all lawyers are created equal. It would be presumptuous to assume that a public defender being retained through some form of legal aid is going to be of the same calibre, or have the same dedication, as one that is retained full-time within a given industry mega-corp including stock benefits and an indexed retirement pension. While the technicalities of the right may be preserved, the balance is certainly not.

Level Playing Field

The principles of justice should include a level playing field. Whether these types of issues have always plagued society or it has just become something that has been occurring with increasing frequency since I started to notice this in the 1980s I don’t know. What I do know is that the legal system in many ways is broken and needs to be fixed.

For example, why should a company like Lodsys be allowed to railroad small independent application developers when the intellectual property they are claiming the right to was originally developed by Xerox PARC back in the 1970s, subsequently improved upon by Metaphor Computer Systems in the 1980s and eventually sold to IBM in the 1990s. Anyone with the intelligence of a fried noodle and an internet connection can find this out in 5 minutes.

It shouldn’t take Apple and a small army of lawyers to figure out how wrong lawsuits like this are and to have them thrown out of court. While I’m not a big fan of Apple Corp, at least they have the kahunas to stand up and do the right thing for their development community on occasion.

— Kevin Feenan