by Mike Masnick

Filed Under:
analogies, copyright, laws, offline, online

Yes, Online And Offline Rules Are Different... Because Online And Offline Are Different

from the basic-economics dept

In the past we've discussed the ridiculousness of claiming that the internet is some sort of "wild west" without laws just because some people don't like the laws covering the internet. Clearly, there are plenty of laws that deal with the internet. What people really mean when they call the internet "the wild west" is that they simply don't like the laws -- and specifically that those laws don't fit into the analogy they have crafted for the internet.

But it's important to recognize that the analogy they have crafted is just an analogy.

Just as claiming that copyright infringement is "the same as taking a CD out of the store" is a bad analogy, so are the claims that the internet is lawless. The fact is that the internet is different. That doesn't mean that there shouldn't be any laws online -- and as noted, there are tons of laws that impact the internet already. It's just that you can't do a one-to-one comparison between situations online and offline, because they're not the same.

And this works in reverse as well, which was brilliantly demonstrated a few weeks back by Julian Sanchez, who sought to flip the analogies by posting the typical "lawless internet" script, followed by a similar screed looking out from the internet:
At regular intervals—too short for it to even be amusing anymore—we now hear that debates over Internet regulation would be more productive if only people would get it through their thick skulls that the Internet is not some special free-for-all zone. There’s no reason it can or should remain magically exempt from the rules that apply everywhere else (we are reminded) and it is absurd and mysterious that some people (we are assured) believe otherwise.

This is a fair point. But what about all these hippy-dippy Real World anarchists who think meatspace can remain immune to the rules any well-managed virtual community understands to be essential? How is it, for instance, that citizens are physically capable of injuring each other, regardless of whether they’ve opted in to player-versus-player? And what fool designed it so that my image is visible to all other users in the same city, even if we aren’t friends? You’ve even apparently got to jump through a bunch of hoops to get something called a “restraining order” just to implement a simple user block!
The key point: there are certain things that are simply different in both worlds, and while you can try to create a direct analogy -- or even say that we must create an analogy, all of those analogies break down as you dig deeper. In the real world, someone taking a CD means there's one less CD to sell. That's not true online. While you can make copies of something in the real world, online it's instantaneous and exact. No matter what the analogy, you'll run into problems, which is why relying on analogies never involves looking at the real issues. So using such analogies is always going to be a mistake. Again, to Sanchez:
What will actually make debates over Internet regulation more productive is universal recognition that the first paragraph is exactly as dumb as the second. (Possibly more so, since the second at least hints at some interesting possibilities.) You cannot implement an analogy. The rules that you’d want to apply if you could make it so just by wishing are not always the rules it is wise or feasible to attempt to actually put in place, once you’ve factored in the probable efficacy of that attempt and its unintended side-effects. Both of these, alas, are determined by annoyingly stubborn “facts” about the nature of the technological context in which you want to enforce the rules.
If we're going to address issues involving the internet, it's going to take actually understanding the internet, rather than trying to apply misleading analogies that don't actually represent the situation. The internet is different. That doesn't mean it is (or should be) lawless. But if there are going to be appropriate laws, they need to recognize the realities of the technology, not pretend that the internet is just like the physical world... but in pixels.

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  1. icon
    Samuel Abram (profile), 1 Mar 2012 @ 3:36pm

    I think this A.C. has a point.

    When some people say "piracy" = "theft", a better real-world analogy will be like turnstile-jumping to get into the subway in NYC or any other metropolitan area. It's "theft" in that something that is offered for sale and not for free is not being paid for without the permission of the owner of said thing (the Metropolitan Transit Authority in my subway example, the copyright owner in the examples of "piracy"). However, nothing is being lost, except an opportunity at a sale (I realize that there are people who pirated music who later bought the music they pirated. I know, I'm one of them. Still, it's like saying that people who jump turnstiles also pay to use the subway more: it's quite possible more money could have been paid legitimately were there legal opportunities, but that doesn't excuse infringement).

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