Before January 21st was the inauguration of Barack Obama, it was Martin Luther King, Jr. Day. But yesterday’s celebration of our first black president and of a civil rights martyr is more than simple coincidence: 2013 is the 50th anniversary of Dr. King’s “Letter from a Birmingham Jail.” When Dr. King was arrested in Birmingham for protesting Jim Crow, a group of white clergymen published a statement. “A Call for Unity” acknowledged the injustice of racism but insisted that segregation was an issue for the courts. Social activism was not the path to equality; public spaces were not the proper place for struggle. In anticipation of Dr. King’s arrest, Harvey Shapiro, then editor of The New York Times Magazine, had extended an open offer to Dr. King: if Dr. King found himself in jail again, he could write a letter for the Times. Yet Shapiro could not convince his colleagues to print “Letter from a Birmingham Jail,” Dr. King’s response to “A Call for Unity.” File the incident under “unfortunate rejection slips sent to great authors.”
“Letter from a Birmingham Jail” is a lucid discussion of justice and law. The central questions of the essay are, is racial segregation a just or unjust law, and, if racial segregation is an unjust law, how are we to respond?
“A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.”
I have introduced Dr. King’s exposition on just and unjust laws so as to ask a question unrelated to racial segregation: is copyright law just or unjust, insofar as it applies to the exchange of information on the Internet?
I have posed this question because freedom of information will be a pressing problem for Obama and the administrations that follow. Although racial, gender, religious, class (etc) inequalities continue to trouble the progress of human freedom, the fight for equality is migrating to virtual spaces. File sharing and piracy are symptomatic of this shift. A denial of access to the Internet, like the denial of education or medicine, suppresses the individual as political actor. Policy issues like copyright law, antitrust legislation, and censorship define the parameters of behavior on the web. These laws determine what can and cannot be said, where and how and by whom.
That is not to suggest that file sharing is “right” or that copyright laws are unjust. Rather, the terms of the debate need to change. Conversations about intellectual property set the rights of the consumer against the rights of the artist. In fact, “the rights of the artist” is a shibboleth. When we speak of “the rights of the artist” we speak of “the rights of the corporation,” the distributor of artwork, whether music, books, or photographs. The regulation of information exchange, that is, the designation of limited rights conferred upon ownership, implies a new relationship between the consumer and the corporation. Instead of obtaining a material object, the consumer acquires a contract of “fair” and limited use. In effect, the consumer does not own the object in its entirety, but only a peculiar and arbitrary application of the object. It is as though a person, having heard a song on the radio, had his tongue cut out for whistling it on the street.
I do not want to pass judgment on the relative injustice of copyright laws after such a preliminary analysis. But I do think we can ask how Dr. King would have responded to illegal file sharing:
“In no sense do I advocate evading the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice is in reality expressing the highest respect for law.”
In his second term, Barack Obama will have the opportunity to reset the assumptions governing Internet freedoms. Perhaps unfortunately, the free Internet cause does not have a Dr. King to pen missives from cold jail cells. Needless to say, I do not think Dr. King would have approved of Kim Dotcom. As long as dialogue about file sharing and copyright circles around greed, from either the consumer or corporate position, the cry for justice is nothing but crocodile tears.