Creative destruction?

Sonia Katyal at Fordham Law School sent me a heads-up about an essay she co-authored, posted on the occasion of the Greensboro civil rights sit-ins, called “Celebrating Trespassers” at a minor blog I never read:

The Greensboro protesters did not invent the sit-in tactic. The labor movement, for example, had made extensive use of sit-ins to agitate for the right to unionize in the 1930s. But the students’ youthful vulnerability and courageous nonviolence, combined with the simple justice of their cause, made their brand of political expression uniquely and viscerally effective.

That quote is for purposes of framing the new book she’s written withwith Eduardo Penalver, a professor at Cornell Law School, Property Outlaws:  How Squatters, Pirates and Protesters Improve the Law of Ownership. As Sonia explains:

Carry that freight

In a nutshell, it argues that a degree of civil disobedience is essential to the health of both tangible property and intellectual property law.  It explores in detail a series of examples–everything from the history of squatting in the American West to HIV drug activism in South Africa to mashups and gay marriage–in which such property disobedience played a crucial role in sparking legal reform or led to needed legal clarification, with a special emphasis on technology, innovation, and civil rights. . . .

Okay, so if you know me even a little, you know this is not really exactly my point of view about things.  But Professor Sonia knows me a little the way other readers of LIKELIHOOD OF CONFUSION® do.  So she knows that this blog does indeed champion the spirit of subversion from time to time, and that this blogger, has seen too many lives destroyed by the laws’ mindless cooperation with “stakeholders”–not “Big Business” per se (though sometimes yes) but big businesses–in using intellectual property law to destroy competition.

So good:  I’m listening.  Now, I haven’t read the book.  But as someone who believes in the free market–mostly, but maybe not so much regarding certain technological leviathans–I agree that destruction, even subversion, breaks up the weedy, rocky soil that chokes innovation and growth.  I would even go so far as to say that upending the order of things can be so valuable that the rule of law may have to be sacrificed, temporarily, for society to move forward.  I am more Adams than Jefferson, but heaven help the American who is no Jefferson at all.

But I am mostly Adams.  Let’s leave apartheid out of it.  Civil disobedience to upend apartheid is pretty hard to argue with.  But does that mean I have to celebrate “everything from the history of squatting in the American West to HIV drug activism in South Africa to mashups and gay marriage”?

Well, that just reads to LIKELIHOOD OF CONFUSION® like a laundry list of funky lefty causes, none of which approaches the apartheid gold standard of impeccable moral merit and some of which are arguably the promotion of immorality itself.   I don’t doubt that Sonia and Eduardo are up to the task of fitting these fashionable causes into their paradigm, but I’m not optimistic that they’ll move me on those points.

I am sure, too, that in the whole big book, Sonia and Eduardo address the essential differences between the varieties of civil disobedience used as examples in their blurb.

Martin Luther King’s civil disobedience was premised on both giving the civil order its due by paying one’s nominal, or real, “debt” to it–being arrested for disobeying immoral laws and doing so with a minimum of resistance; sitting in jail or paying appropriate fines; and overall managing to challenge society without necessarily threatening its foundations all at once.

Can we say that about “squatting in the American West to HIV drug activism in South Africa to mashups and gay marriage”?  I don’t know; it doesn’t seem that way.

Consider, after all, South Africa’s example.  There you have the compelling cause of apartheid undermined by radical civil disobedience–revolution, of course.   A wicked order is gone; yet in its wake what is left, what is built in South Africa?  What are the foundations of that society today, not only in terms of institutions but of moral sense?

Okay, sorry, this is a trademark blog.  And  I see something I do like in this blurb.  To the extent the authors identify the economic and cultural cancer of IP abuse and overreaching as a regime against which civil disobedience can make inroads, they are right.  The RIAA is fooling no one but itself.  Change is coming because it is coming, and the law ultimately cannot hold back the flood.

But downloading pop music and doing mashups for MTV, of course, are not breaking the color barrier in the American South, or throwing of the yoke of foreign tyranny, or even even tweeting a revolution against dictatorship in Iran.  Again:  I didn’t read the book, and what I read of the press release was, as you can see, engaging and compelling enough to make me write this.

So if you have time for books, go buy this one already.  Just one thing:  A generation ago there were young turks who thought they were going to change the world with all sorts of civil disobedience, too.  They urged us to “steal this book”!  But do me a favor and, after all, help out Sonia and Eduardo.  Their information doesn’t want to be free!  No civil disobedience at my friends’ expense.  Buy it for money, okay?



Author:Ron Coleman

I write this blog.

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