Today I read an article on Techdirt about copyright infringement and more specifically the very interesting discussion that occurred in the comments following the article. It made me think about how laws are made and how laws should be made. To me it seems that most people miss the point of laws, they think that they are there to provide justice, or fairness, or maybe to keep people safe. Laws can do all of these things and each one of those things is a noble goal, it is the "right" thing to do. But, none of them represent the point of why we should make laws.
Laws represent a framework by which a society provides a framework for its members to operate within. As such, the reason that laws should be made is not to do the "right" thing, but to do the "best" thing that provides such a framework. Often the best thing is the right thing, but sometimes it is not and I think that those times lead to the hardest decisions. As Americans we have been told to always do the "right" thing and to stand by justice and fairness, but this is not always the correct thing to do and I believe that this has the potential to hinder our society and nowhere is this more evident than in copyright law.
Protecting those who create by not allowing others to profit from their creation is the "right" thing to do. It screams to us that it is only fair, that justice demands that strong copyright law must be made and enforced. However, in this case I believe that we need to look at what is best. These strong copyrights seem to be holding back innovation and causing funds that could be use to further our society to be funneled into the black hole that is the legal system. This is clearly not what is best.
What really bothers me is that in the beginning the founding fathers of the USA got this. Many aspects of the Constitution take the side of what is best and not what is "right". Innocent until proven guilty, freedom of speech, the right to bear arms, due process; all these things are not the most "Right" solution, they can lead to criminals going free and people being hurt, but they are the "best" solutions for a free society. And these are just the things that I can think of off the top of my head, I am sure that there are many more examples if I actually looked.
This disconnect, between the founding father's "best" solutions, and modern day society's "right" solutions, is what is causing all the legal confusion. To make it worse we have corporate interests throwing around huge sums of money and preying on people's sense of "right" to spin laws and policies in their favor. It is, to put it bluntly, a mess and I am truly not sure what the answer is.
