Friday, February 24, 2012

The cost of legal fiction

Another comment from the anti-IP thread (for the first part, see this):

The law does not create rights; it recognizes them. When it recognizes the rights that do not exist, the particular law is not a real law, it is a legal fiction. Legal fictions lead to violation of other people’s rights when they are enforced.

For instance, "right" of a husband to relations with his wife is a legal fiction. It has been in place in most "civilized" countries until very recently. In the UK, until early 90s. In the US, until 70s, I think. Its enforcement led to marital rape.

[Incidentally, the Jewish Law strongly forbids spousal rape.]

The same can be said about any unjustified law. For instance, the supposed rights of a book's author to the information in the book contradict the rights of another person to his hard drive on which the electronic version of the book is stored.

Oftentimes, copyright is justified by the claim that "copyright piracy reduces the authors' sales". This argument is based on another pseudo-right, the right of the author to business transactions with his potential clients. What the copyright is saying is that the author owns other people's money even before they exchanged it for the copy of his book, which is clearly ludicrous.

Every application of law needs to be very strictly justified. The law comes in and tells a person what to do or not to do with his hard drive, with his house, with his car, with his body, etc. -- or else (it threatens with force and violence in the case of non-compliance to the law).

It better have a good justification for doing that. One justification I see protection of other people from violation of their rights. In case when this does NOT apply, the law is violating this person's rights needlessly.

That is why the whole approach of "every law is moral unless proven otherwise" is wrong. Every law is immoral unless proven absolutely necessary to protect other people's rights. That is why people who hold to my point of view (which includes the Founding Fathers and approximately one Congressman today) hold to the idea of a limited government.

This is all simply from the moral, rights-based perspective. In reality, as it is usually the cases with most unethical laws, copyright harms the society by stifling creativity and competition and increasing copyright-related lawsuits. History shows that in such areas as art or music, creativity flourished the most during the periods when works of intellect were not protected by monopolies.

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