Feb 082013

This article on TechDirt summarizes a recent brouhaha that recently broke out in a corner of the Internet I tend to haunt with other lawyers and cyberlaw professionals and has started to percolate into the mainstream.  The upshot is that someone is upset that other people have reposted her tweets without her permission and control, and she is convinced this is legally wrongful.  So convinced is she, in fact, that she keeps threatening to sue a number of them who have used these tweets to comment on her erroneous legal theory, which only stokes further interest in criticizing her as even more observers come to note that the law is not, in fact, on her side.  (TechDirt’s analysis does a decent job explaining why.)

It is easy to be tempted to join in the mocking of this person’s very public tantrums, and to be sure, threatening litigation is not to be taken lightly.  Doing so, particularly when cloaked in legal ignorance, is ripe for justifiable criticism.

But while the exhibition of personal arrogance begs the schadenfreude of public censure, the underlying problem it can reveal is not.  The reality is that for me and my cyberlaw peers, we are so inured to how this area of law “works” (to the extent that it does) we tend to forget how foreign it is to most laypeople (and even many other lawyers), for whom its mystical mechanations can be really terrifying.  This sort of knowledge gap isn’t good for anyone.  That’s how we end up with bad law.

The answer naturally cannot be to modify the law to fit its common misperceptions.  Sometimes the law is what it is for very good reasons, or at least reasons that cannot simply be discounted, even if those reasons aren’t intuitively obvious to a layperson.  We can’t use common misapprehensions as the pillars upon which law should be based.  In fact, when we have done so in recent years, often in response to technology (another complex system that can be scary to those who don’t understand it), the end result has been law that so overreacts that it creates more problems while failing to properly solve any.

At the same time, however, rather than mocking those who don’t understand the law, those who do understand it should be endeavoring to explain it.  Let’s get everyone on the same page to understand how law works and why, so we can all work together to fix it when it doesn’t.  After all, in a democracy law should belong to everyone, not just the rarified few specially trained to understand it.

Of course, the above sympathetic sentiment is directed at those who would be willing to learn.  It’s not a moral failing to not know everything about the law, but it is to not care whether one does or not before proceeding with bumptious legal threats or dangerously inapt policy advocacy.  Those who would seek to use the law as a weapon without bothering to learn how it operates are justly entitled to whatever chastisement they get.

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