Sunday, December 23, 2012

Two lawyers in every home

I had an interesting encounter with an old friend of mine from the south. He posted a comment online that caused quite a stir. It made a claim that gun shows are among the more secure places to visit. Coming so soon after this school shooting it got quite a reaction. The following day I responded here to two things that were said as part of that online conversation, quoting the commenters and giving them credit for their words. That's when the troubles started. 

I posted a link to my site into the comment thread to add to the conversation, which it did. One commenter in particular (a mutual friend by the terms of that site) was quite excited by the assertions made, and so countered mine with a few of their own. After that ran its course for a while my friend posted a comment that advised me of the illegality of my actions and that I could submit a written request to him for use of the quote. It occurred to me that perhaps I should not have relayed the speaker's name in relation to the words said. That it could be seen as an attempt to negatively impact his career. That he espouses these opinions somewhat openly took a back seat.

His stance was that I have to ask permission in advance to use any of his words in publication, specifically those made in a private conversation. Though we disagree on the public and private nature of the comments made, it caused a hearty private email conversation between us. My stance was that I am allowed to quote a comment made by a person as long as I am giving credit to the words spoken and not using them so out of context as to substantially change their meaning. This is the way that I was taught was the appropriate way to quote a source, and that it falls under fair usage. This is even assuming that online conversation is protected under copyright law, a dubious claim as far as I could detect in my light, initial research.

My friend responded, letting me know that what he has been told by his lawyers is that permission should always be asked in advance. But this is their advice to him, thinking only of his legal safety, with the intention to keep him out of unwanted litigation, I assume. He publishes a site with the stated goal of achieving monetary gain. When I researched the matter I found nothing even hinting that online conversation constitutes IP (Intellectual Property). I put the quote back up but removed my friend's name from it, as it was never my desgin to negatively impact his life/career/etc., as I may have mentioned.

He responded in an even more forceful manner that I have no right to use his comment, reminding me the cost of legal defense as being several hundred dollars an hour. As he and I often debate/converse I couldn't really tell if he was just responding to my escalation in the conversation, or if he was actually letting me know that he is insistent on his perpetual control of the words he has uttered, and the written comments that he has made.

The research that I did led me to believe that the only legal recourse he would have to me quoting him would be to sue for damages, a thing that he would have to prove. Now, it's very unlikely that it would harm him, and would be nearly impossible to prove. But if he could establish intent to harm then that's another matter. I removed the quote again, but knew and felt that something was wrong. The idea that I am not allowed to relay my experiences of life without another's permission seemed "off" to me.

I gather that blogs are not protected the way that newspapers are. You are somewhat on your own with legal defense and if a person chooses to then they could make your life very expensive and unpleasant. But I also know that civil courts do not smile on the needlessly vindictive. They would likely favor me in a counter suit if I could establish that my friend actually had made the comment openly, that I had used it in context, and was rebutting it for the purpose of satire, that his suit was only to bully me and stifle discourse at my expense. (This is assuming that my friend was being serious, for the exclusive purpose of this post.)

You see, speech is not protected as IP, but commenting online is not precisely speech. Because you type out your responses and hit return to transmit them they could be seen as published works. This is nothing that I could find valid information on, but it became impossible for me not to notice the difference between actual speech and written discourse. It is similar to a group email, a thing that can be protected, though not nearly as well as some other forms of communication/publication, no matter what those legal threats say at the bottom of the email. They are only an assertion of control. In the real world they do not often function that way, as anybody who reads the news knows.

The other aspect is this... you have every right to relay your life experiences, in your words. Nobody can stop you. As I'm doing now. If your intention is to do damage to somebody then they can still file suit, but it becomes increasingly difficult when you do not use their name, likeness, or a direct quotation of their words. You have much more latitude this way. You can relay the essence of the interaction as you see it. 

Now, I enjoy arguing/conversing with this friend of mine, but the vague threat of legal action did two things to me. One, survival instincts were ignited and my intention was to avoid any possible danger in this regard. The way that my friend's comments were worded there was definitely a sense of growing menace, though he could have also just been playing along. This was all because I was insisting on my right to quote him, and that my intention was to respond to him, not to cause him economic damage. The other was a profound sense of injustice, that discourse could be stifled by the threat of legal/economic impact. Not just discourse being stifled, but the idea that somebody maintains complete control over their statements even well after being made, as if nobody has the right to repeat anybody else's words. And to do so with greater precision is an even greater danger.

Oddly, if I were a journalist working for an established publication, the potential damage to my friend would be greater, but so would be my protection. Being a writer for a personal site affords you very little protection by the law. By publishing your opinions you make yourself more of a target for litigation. So, who has the greater resources becomes the greater controlling influence of public discourse. Nothing new, but disturbing nonetheless. Because it seems to me that the side of the nation that demands greater responsibility is not the side that is accepting it. This is not a comment on my friend, it is an observation about the abiding differences that separate us as a people. Having to acknowledge and defend your own assertions seems to me to be a first step towards responsibility, not a last.

In this way, the interaction I had with my pro-gun friend seemed very similar to the problem that many people have with guns in general. He did make the statements that I relayed.  He knows that he did, as do several others. The statements are still there to be seen for any who may care, among his friends with 
access to his page, a fact not to be lightly ignored. 

The issue that so many people have with guns is that of them being an implicit or explicit threat. The presence of a gun changes the dynamic of a social interaction in a similar way that lawyers change the dynamic of open discourse. The vague threat of gun use is similar to the vague threat of legal action. It is a thing that most people do not want to be involved in, so avoidance behavior begins to distort natural interactions. Anybody who believes that guns equate to greater freedom should try living without them for a decade, then see if they still feel the same. They confuse freedom with power, though it is easy to understand this mistake.

If you follow the gun argument from the "pro" side of it then I am always surprised that they don't argue for the legal right to hold a gun up and show it to all possible threats, maybe even pointedly. By their rationale this would reduce the occurrence of crime because it would function as a deterrent. Listen to their arguments carefully and I think you'll find that what they are saying is not far off. "If those who would march into a school and open fire knew that there were armed carriers in that school then they would think twice, wouldn't they?"

Why not install automated gun turrets in each and every hallway, across every school in the nation? Why be satisfied that a concealed carrier would just "have a chance"? Let's give the killers no chance at all. This would be even far more effective than a random smattering of carriers. It would achieve a sort of democratic ubiquity. It could be controlled dispassionately from a distance; ensuring the safety of students, faculty, and administrators alike. Who would possibly attempt anything harmful in such a protected environment? Complete and total safety, right? 

It is a simple extension to the argument, and one that requires virtually no imagination to achieve.  It is part of what they are arguing for. More guns will function as a deterrent. The reason that they don't make this argument is that it removes one very important factor: their access to power, whether real or imaginary. It satisfies in a more effective way the actual dilemma, with their own solution. But it removes their individual and collective fantasies of remaining "vigilant." I assure you that this answer would prove to be unsatisfactory to them. We must ask why. Everybody must ask why.

If everybody had a good lawyer then this would also help, right? That is, until somebody decided to have two.