[governance] SOPA or no SOPA
Paul Lehto
lehto.paul at gmail.com
Wed Dec 14 18:18:00 EST 2011
On Wed, Dec 14, 2011 at 5:40 PM, Ivar A. M. Hartmann <ivarhartmann at gmail.com
> wrote:
> Paul,
> I don't see how the argument you so extensively devoted yourself to make
> (and with which I agree) is pertinent to the issue pointed out by Sonigitu.
>
Fair enough. Sonigitu devoted a post to the idea of mutual respect. From
"behind the veil of ignorance" where we do not know what circumstance we
will find ourselves in when we enter this world, we would inherently agree
upon mutual respect and equality norms. So, here I am trying to tie my
post more directly to what Sonigitu said.
>
>
> It seems the issue lies here. Implying legal right to ownership of
> physical goods (especially is immovable) might be said to be inevitably
> tied with the property laws of some country. But what about the legal
> rights to ownership of intellectual property?
>
Intellectual property, being mobile pushes the envelope of international
law, in the name of preventing copycats in foreign countries. Some
copying, as i see it, is legitimate (life-saving drugs) while some other
copying is not.
I believe what Sonigitu, along with others in this list, is pointing out is
> that the US Congress, when faced with the choice of whether to make US law
> influence to a higher or lower degree the "transactions involving the
> internet" in ways that will impact individuals wholly outside of the US
> government's legitimate sphere of political power, usually opts for the
> first option. And what arguably distinguishes it from the legislators in
> other countries is that it takes much less, if any, consideration on how
> its choice will affect people in other countries.
>
In legal terms you refer to US law being given "extraterritorial effect."
This is often abusive, but not always (what about crimes against a
country's own citizens, occurring abroad, where the foreign country does
nothing or where the defendant is present in the home country for purposes
of lawsuit? Most would support some narrow exceptions to the rule against
extraterritorial effect like this or some other roughly analogous
example.) One should note that corporations, in their terms of service,
quite often give the laws of their chosen country extraterritorial effect.
More often than not, the terms may incorporate US law, but increasingly
they will choose some other country. This creates an incentive for a
perverse kind of "competition" among countries to see who can set up the
most business-friendly court system and thereby, they hope, attract more
business investment.
But, Ivar, given the way you word the following, it is impossible to
disagree: "[[...laws that] impact individuals *wholly outside* of the US
government's *legitimate* sphere of political power." (emphasis added)
The question is, what is the "legitimate" sphere? Probably I would agree
with most or all examples anyone here might give.
As a US citizen, opposed to laws that impact individuals *wholly
outside*of the US government's
*legitimate* sphere of political power, I would only add that often times
it seems that the US government of the last decade or two has increasingly
ignored not just those outside its jurisdiction, but its own citizens as
well. So, many of us in the USA can definitely relate to these
experiences! :)
Paul Lehto, J.D.
> Ivar
>
> On Wed, Dec 14, 2011 at 17:12, Paul Lehto <lehto.paul at gmail.com> wrote:
>
>>
>> On Wed, Dec 14, 2011 at 3:21 PM, Sonigitu Ekpe <
>> sonigituekpe at crossriverstate.gov.ng> wrote:
>>
>>> Thank you Daniel.
>>>
>>> The truth is that interest has over taken RESPECT of each other.
>>>
>>> The World would give us more than we currently have; if will could put
>>> respect first.
>>>
>>> The US do have great interest; and WISH to control an orderly Global
>>> Village.
>>>
>>> To me its time to set the Global Village with the rules and regulations
>>> for a more respectful World Societies.
>>>
>>>
>> This reminds me to bring us back to a prior discussion, where I showed
>> (except to the satisfaction, it seems, of a couple posters on this list)
>> that there are always "background" laws from some country or jurisdiction
>> that structure transactions involving the internet. No matter how
>> dedicated a tiny minority might be in not using contracts (and thus the
>> contract laws of some country or place) *they will still claim the legal
>> right to the ownership of their own server, or their own computer, thus
>> implicating the property laws of some country* or place, even if this
>> tiny few refuses other legal structures like internet commerce with its
>> contracts and terms of service with Visa, MasterCard, PayPal, or the like.
>> Even this tiny minority on the internet will still claim, very likely, some
>> kind of right to be free of basic denial of service attacks, and so forth.
>>
>>
>> If there is to be any civilization on the internet, we need legal tools
>> that go beyond the primitive tools like retaliation and social ostracism
>> (not available for anonymous attacks) that are practiced in extremely rare,
>> relatively law-free situations.
>>
>> *If we start out with a truly law-free system, people will rapidly
>> develop a very large consensus that there needs to be a way to enforce
>> promises (such as those in contracts) so that trust and reliance on the
>> word of others can be promoted* -- this is very good for the economy
>> among other things. An extremely large consensus will rapidly form, for
>> example, that when one buys something or says something, the thing one buys
>> should work at a basic level, and the words spoken should not be a direct
>> death threat. This leads, respectively, to what's called the "implied
>> warranty of merchantability" in contract law and certain criminal / libel
>> laws (in common law countries) to protect the reasonable expectations of
>> buyers and the reasonable expectations of those who wish to engage in free
>> speech. "Free speech" has never meant - to any serious thinker anyway -
>> speech entirely devoid of all civility and respect, no matter how extreme.
>>
>> The key to all of this is a balance. *There MUST BE some "structuring
>> laws" like those I mention above, but they SHOULD BE as neutral a
>> playing field as possible*. What it seems we all want to avoid (but
>> some confuse the issue by implicitly stating that this kind of abuse of
>> power is *the ONLY thing* governments do) is prevent heavy-handed
>> government control and over-structuring of the internet. But just because
>> we oppose heavy government censorship in China, for example, does not mean
>> that ALL LAW is a bad thing.
>>
>> Law is, as I try to show in brief form above, *a necessity at some basic
>> level*. The question is only *who* the governments will be that will
>> provide the necessary law (even if this law is chosen in an internet
>> contract with a "choice of law" provision) - even if we have to create a
>> new global democratic government system for the internet - and *whether *that
>> law will be a type of neutral law facilitating the freedom, equality and
>> protection of all, or whether it will be driven by special interests or for
>> the advantage of certain public or private power brokers, whether they be
>> business interests or governmental interests.
>>
>> Neutral laws can be imagined or derived from thought-experiments
>> involving the idea of the "veil of ignorance." That is, we imagine
>> ourselves before birth, ignorant of whether we will be born rich or poor,
>> healthy or ill, etc. Not knowing our fate, we are not able to prefer any
>> special interest. Under these situations, we quickly develop very large
>> majorities if not unanimity that all humans should be considered equal in
>> certain basic respects, etc. On a little more sophisticated level, we can
>> also imagine similar neutral laws for the internet. *This "veil of
>> ignorance" example can be used as one test of whether a given law is of the
>> neutral, freedom-facilitating and equality-facilitating type,* or
>> whether it is of the special interest/power broker type of interference
>> that very few really support, both in the real world and in the "veil of
>> ignorance."
>>
>> We ought not to engage in fantasies of "no law." Those who do engage in
>> such fantasies are either doomed to very primitive conditions of
>> retaliation or ostracism when things go bad, and they simply don't "see"
>> the invisible laws that continue to structure human interactions, whether
>> they know it or not. What we, I think, all want to do, is make sure we
>> have a framework of neutral laws that facilitate the structures of freedom
>> but at the same time also make sure that there are no, or very few, unjust
>> laws. Without law, it is the law of the jungle -- victory of the powerful
>> over the weak -- that dominates, and it has been a number of centuries at
>> least since a majority thought the law of the jungle was in any way just
>> (if indeed a majority EVER has thought so).
>>
>> So I am not confused with those who rely too much on consensus, I will
>> also add that in certain important cases we will also need not
>> consensus-based decision-making but majority rule decision-making. But
>> here, there is such a thing as "the tyranny of the majority." Majorities
>> can oppress minorities. To solve this democratic dilemma, we have
>> developed TWO tiers of law. First there is constitutional law - the most
>> basic protections and rights - which mere majorities can not change (but
>> usually large super-majorities can). Second, there is "regular" law. In
>> all of the *situations where the tyranny of the majority danger is
>> greatest, we protect freedom and equality with the high constitutional law
>> *, so that temporary majorities don't take advantage of minorities (e.g.
>> constitutional rights against race discrimination, etc).
>>
>> With all of the understandable anti-law or anti-US-hegemony talk on this
>> list, I think it is important to understand that from the perspective of
>> being behind the "veil of ignorance" it can be seen that while reasonable
>> people may disagree on the number of laws and sometimes on their content,
>> there can be no *reasonable* assertion that the internet (as we know it)
>> can exist WITHOUT law entirely. So the question is *who* will make the
>> laws and *for where*, and *what *their proper content should be.
>>
>> Paul Lehto, J.D.
>>
>> --
>> Paul R Lehto, J.D.
>> P.O. Box 1
>> Ishpeming, MI 49849
>> lehto.paul at gmail.com
>> 906-204-4026 (cell)
>>
>>
>>
>>
>>
>>
>>
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>
--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul at gmail.com
906-204-4026 (cell)
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