SOPA, due process and democracy

So SOPA is dead. Apparently and perhaps only until there's a new President of in the White House. Cause for celebration right? Maybe not.

In the same week that most of us who know about this stuff were wiping sweat from our brows the US Government casually (and perfectly orchestrated too) demonstrated why SOPA is trying to stop the horse from bolting. What do I mean? Check out this - http://www.guardian.co.uk/technology/2012/jan/20/megaupload-shutdown-guns-cars-cash-seized - if you can't be bothered to look it up, it's the story of Megaupload being shut down. Like a cruise missile fired casually across the bows of campaigners who are clinking glasses of Prosecco thinking they've stopped the invention of the handgun.

Now, this smacks of a message being sent to those people involved in the fight over SOPA - both that it's irrelevant to object but also to encourage those who were trying to get it passed.

As a non-US national who's never downloaded an illegal file in his life (call me old fashioned but I think people who create content should be paid fairly for it - regardless of whether that includes paying for a self-indulgent and wasteful infrastructure) I worry about the US' insistence that it has the right to violate other states' borders for the sake of its own commercial interests. This isn't Japan in the 19th Century and the rest of the world isn't a superpower's plaything. Setting aside the violation of sovereignty this represents (and there are strong arguments that the US acts like this because other countries DON'T respect intellectual property robustly) there's also the issue around who gets to decide what content is and how we can consume it.

Salon.com, via Glenn Greenwald, has a superb piece on the implications of this event although not necessarily completely robust in its interpretation of what's happening. However what is clear is this:
1. There are MASSIVE commercial interests in ensuring that you and I don't write our own novels, make our own music and film our own films. That's free and means we're not glugging down what corporate interests want us to.
2. Where big commercial interests are concerned, there's enough weight both legally and financially, to ensure that filing a complaint is enough to warrant authorities and courts taking action - regardless of actual proof or merit. This flies in the face of both "Innocent until proven guilty" and where extradition is based upon a one sided filing - Habeas Corpus.
3. Democracy, as it is currently constituted within the English speaking world, is too narrowly focussed as a political concept - being only on who gets elected to the executive legislature and not, legally at least, extending to any other area of life.

It's the realisation of number 3 - which flies in the face of the way most of us assume we live our lives - that is the revelation for me. Legally, we can't say the voice of the people is correct, except where it concerns political representatives. That is absurdly narrow and allows companies and other corporate entities (such as governments) to act explicitly undemocratically and against the interests of the greater number of people while remaining thoroughly within the scope and spirit of the law.

I think the founders of MegaUpLoad will fight a good fight. They may even win - they are very rich after all -  but the case itself is revealing to all of us who think about these things. Social media is offering us something we cannot legally defend - that is full democratization. If Social Media is unable to deliver what we thought it might, it's because our legal systems are predicated on protecting the rights of those with rights to protect (and that is a truism only because designing a legal system on another basis is nonsense). Can we overhaul our legal systems to create the space for full democratisation? Unlikely - at least I doubt it within my lifetime and that's because I don't think we've understood the nature of what it is we're asking for. Without knowing what the implications are of what we've created, defending it is essentially impossible.

Does fighting SOPA make sense? Of course. However, we should all remember that law is a series of declarative statements and boolean logic with acres of greyspace between the black and white of the page. All interpretation of law resides within this grey space and the operation of our legal systems and those who preside over them, is arcance, complex and one of confidence, precedence and foresight. Just because SOPA is defeated it doesn't mean the US can't still act as if it was in existence.

But this is also where the glimmer of hope remains - if we can crowd source it - and that is this same grey space exists for us too. European Courts, at least, are not the creatures of their governments and as with all fights for civil liberty from powers who think they know what it is that's best for the rest of us, we can bring a broader truth out of our legal systems - that they work for the people and not for the providers of the people. This should be true whether I want to write a book, congregate in a crowd or simply go to work and keep my head down.