I sometimes feel as if almost everyone in the United States takes not only the laws, but the Constitution, if not most of the foundations of our nation, out of the context in which the framers set them, all the while screaming about rights that the founders never envisioned.

The state of Utah, and a number of other states, have been attempting in various ways to circumvent federal rules and regulations established under laws passed by Congress, and the rationale for these acts is that Congress is acting against the Constitution, but Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  In short, federal law supersedes state law.  And, if the Supreme Court declares a law Constitutional, then it is. Period.

You may not like the law.  You can certainly lobby and try to persuade Congress to change it, but state laws cannot overturn a federal law, except by a successful appeal to the Supreme Court… and yet a number of state legislatures have passed or attempted to pass laws in contravention of federal law.  Doesn’t anyone remember the bloodiest conflict in U.S. history, caused because a handful of states insisted that state laws preempted federal authority?

As a side note, interestingly enough, there is a section of the Constitution which states that Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This does suggest that the Founders did not believe that information should be “free.”

I just read about a lawsuit in which the plaintiffs contend that they have the right under the first amendment to inundate a website that they oppose with such a volume of internet traffic that it results in denial of service and renders the website inaccessible to others.  Come again?  You have the right to use your freedom of speech to deny others theirs?  I don’t see this in the text or the subtext of the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Now the case in point sounds extreme, but how would that be, in practice, much different from the impact of the Citizens United decision, which essentially said that, if you have enough money, you can buy up the airwaves to the point where you deny others the right to express their views.  The Founders, with the possible exception of Thomas Jefferson and his mistrust of the power of massed financial interests, never envisioned a modern communications system where “free speech” is not free but purchased by the minute.

Likewise, there’s the bit about an “establishment of religion.”  In the context of the time, and even in the language, it’s clear that the founders did not want Congress establishing any religion.  Yet lawmakers have attempted and in some cases been successful in legislating religious doctrines into law, in issues such as abortion, evolution, and in school curricula and even public school textbooks.  Yet these same legislators are all too often the ones who complain that “liberals” or others are thwarting the intent of the Constitution.

Then, there’s the second amendment to the Constitution.  The words are fairly simple: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”   How does context matter?  To begin with, at the time the amendment was adopted, “arms” that could be used by the people consisted of swords or sabres and single shot pistols and rifles.  Anything larger or more deadly, such as cannon or warships, was clearly the province of governments.  In addition, although the U.S. Supreme Court has ruled that the Second Amendment does convey an “individual right” to keep and bear arms, it has also held that such a right exists primarily as a right of self-defense.  Both historical context and law would strongly suggest that it is stretching the Second Amendment, if not smashing it, to contend that it conveys an inviolable right to any kind of weapon an individual wants to possess, the National Rifle Association notwithstanding.  And, in fact, the previous ban on assault weapons was held to be Constitutional.

Now… all of this won’t persuade anyone who thinks differently about these and other issues, but for the record, I’m suggesting that the actual words of the Constitution and the context in which they were adopted do indicate what the Framers had in mind… and not what we’d like to hope they had in mind.

The sad case of Aaron Swartz, mentioned and debated in previous blogs and comments, underscores a question that I and others have doubtless had for years:  Why is it that so many individuals and organizations are astounded by, or perhaps oblivious to, the side-effects and/or unintended consequences of their actions?

Swartz clearly did not understand the implications and ramifications of his actions, and, while we can never know, I suspect that the consequences of his actions literally overwhelmed him.  Do I have proof of his lack of understanding?  Not in the legal sense, but when one attacks the legal basis of the American entertainment industry, the print and publications industry, not to mention precedents clearly set forth in the U.S. Constitution, as well as later established legal precedents of more than a century and commits a crime or two in the process of doing so, even minor ones, and then insists that one should not spend a single day in jail… that does suggest at the very least a certain naiveté, that or incredible arrogance.  But then, by all accounts, Swartz was a genius, and many of genius are both naïve and arrogant.

Yet lack of understanding of consequences isn’t limited to naïve geniuses. Why were so many in the financial community offended and surprised by the “Occupy Wall Street” movement and the support it generated, at least for a time, and for the continuing level of anger and distrust?  Let’s see… you essentially defrauded banks and mortgage holders with your securitized CDOs and other financial gadgets and crashed the economy into the second worst recession/depression in a century… and you’re surprised that so many people got upset?

What about the National Rifle Association and its members?  Do you really think the people who are skeptical of home arsenals with semi-automatic weapons with 30 or 100 bullet magazines are going to react happily when, just after 20 innocent school children and 6 teachers are gunned down with those kind of weapons, you issue statements insisting on the freedom to carry assault type weapons and propose armed guards in every school in the country at a time when schools are having to lay off teachers?  Why don’t you just throw barrels of gunpowder into the fire you lit?

Then there is the U.S. Congress… that august body that has, for the past fifty years, essentially spent more than it has collected in taxes in all but a handful of years… and now, suddenly, doesn’t want to borrow any more money to pay its debts, and is talking about cutting Medicare and Social Security benefits, as well as unemployment benefits… and can’t get its act together… But the members wonder why the approval rating of Congress has dropped to something like 24%., and the ratings of the leadership even lower than that, when each of them insists he or she is just doing what his or her constituents want.

Amazon decided several years back that it was going to dominate the book market, especially the ebook market, no matter what, through predatory pricing. Didn’t Amazon think the publishers might react?  They did, and decided on the agency model.  Amazon’s share of ebooks dropped from 91% to something like 61%  and, in turn, Amazon funded “citizen initiatives” in California and elsewhere, and lo and behold, the Department of Justice has taken action in favor of predatory prices to keep book prices low, at least for bestsellers and for the moment. But didn’t the publishers have any idea that the huge pressure for free or low-cost ebooks would have a consequence?  Macmillan and Apple apparently do, from their acts and statements, and understand that the DOJ suit is political, rather than based on true antitrust grounds, but they’re taking a huge risk. The other publishers caved almost immediately…and clearly don’t see, or care, that if Amazon and DOJ win, we’ll see another significant round of bookstore closings,  yet another major factor contributing to the continuing decline of what I’d call serious pleasure reading.

The Affordable Health Care Act was the result of a health care and insurance system that left nearly fifty million Americans unable to afford health care.  Didn’t anyone think that sooner or later, some politician was going to try to do something about it?  And now that it’s law…employers are laying off workers or reducing their hours because they don’t want to comply with the requirements.  Didn’t anyone think about that?

Outside of the big and the obvious, unintended consequences are everywhere, and I’m certain all of us can relate individual examples which we’ve witnessed.  There are instances everywhere – but why does it happen so often?

Because, in all of these cases, and in all the others with which I’m familiar, those who made the decisions or pushed the projects, or the like, that caused the side effects and consequences are so deeply locked in their view of the world that they either cannot see another view or dismiss that view as wrong or incorrect. If you will, most people are locked in their own bubbles, at least on the matters that mean the most to them.

Sometimes that’s because they believe so deeply in what they do that they cannot see beyond those beliefs.  I’ve known and talked to enough NRA members to know that the vast majority believe that they cannot truly be safe without weapons to defend them and their homes and loved ones. They believe that they and those who believe as they do are the only reliable bastion of protection – and, sad to say, in some cases they’re probably right.  But that same culture that has made guns so available has also made millions of weapons available to those who should never have them.  The freedom to own personal firearms has had the side-effect of making them available to those who should not have them… and I’ve not seen anyone in a high position of power point this out, although I’m certain more than a few people have.

Greater freedom and the lack of effective oversight, in the form of deregulation, led to greater abuses by the banks and investment bankers.  Why should anyone have been surprised?  The same sort of problems occurred in 1929 and even earlier.  The reforms of the 1930s were enacted for a reason, but after almost eighty years, the lure of greater profits and growth was stronger than the fading knowledge of history, and that’s not surprising, because each generation of human beings has always known that it is smarter and knows more than the preceding generation, just as each older generation knows that the youngsters have learned nothing and respect nothing.

But what’s common to both is the feeling that the inevitable consequences of actions, both wise and unwise, won’t affect them… or not too severely.

During the discussion and issues raised by the issues surrounding copyright over the last two blogs, I realized that literally for years I have been pointing out that piracy is decimating the ranks of the midlist authors, but without explaining how this works in practice. I’ve heard all too many readers say words to the effect that, “my reading a pirate copy here and there won’t make any difference.” Unhappily, when thousands of readers take the same view, the results can be rather dramatic.

The example I’m going to give is based on the experiences of several midlist writers who are no longer midlist writers because no publisher will now publish their new books [unless they’re doing it under a pseudonym, which I know is not so in any of the cases I know].

Let us say that a midlist author named Aubrey [and if there is an author named Aubrey in this situation, I apologize, but I’m picking the name because I don’t know one] has sold five books. The first book lost money, but not a lot, and got good reviews. Based on that, Aubrey’s editor convinces the publisher to buy the next book, with an advance of $15,000. That book sells just over 6,000 copies in hardcover, and 15,000 in paperback, so that Aubrey receives slightly over $23,000 over essentially two years. But Aubrey works hard and can manage writing a book and a half a year… just enough to scrape by after paying her agent 10% (he’s cheap; most cost 15%). The sales on the next two books go up a bit, but only slightly, to perhaps 6,500 hardcovers, but the paperback sales drop off to around 12,000 copies on the third book (which is exactly what has been happening over the past 10 years), leaving Aubrey with about the same income, and to 10,000 copies on the fourth, which drops the income from the fourth book to less than the second book. At this point, the publisher is getting worried, because his break-even point is based on selling 5,000 hardcovers and 15,000 paperbacks. But since Aubrey’s hardcover numbers are above the break-even point, and the publisher and editor like Aubrey’s books, Aubrey gets a contract for book five. By now, ebooks have really come into play, and Aubrey’s fifth book only sells 4,500 hardcovers, and 1,000 ebooks at the initial price. From the publisher’s cost point of point of view, that’s close to the equivalent of 5,500 hardcovers, but the paperback sales drop to 6,000 copies plus another 1,000 ebooks at the paperback price. The 6,000 paperbacks are below a cost-effective number to print. That drops Aubrey’s income for that book to around $18,000. Unfortunately, Aubrey’s sales trend is down, and the publisher has lost money on the last book. Given those trends, much as he and the editor like the books, Aubrey doesn’t get a contract for the next book.

The result is that the publisher’s revenues drop some 20% on Aubrey’s books, and Aubrey’s income drops to zero. The readers who have switched from hardcovers or paperbacks to pirated editions of those books can say that the publisher’s revenues didn’t go down that much and the authors and publishers are still making plenty. No… the best-selling authors are, but the reduction in less popular midlist titles means a greater reliance on the best-sellers and the generic look-alikes.

This isn’t fantasy, or even science fiction. I could name at least five authors who have gone through similar scenarios over the past several years. In general, hardcover/’initial ebook sales have not declined that much, and, in fact for the big-name authors, those hardcover sales may have held steady or increased, but the farther an author is from the first few spots on the best-seller list, and the more unique a little-known author is, in general, the greater the decline. This also explains the rise of generic look-alike books, such as urban fantasy chick-lit, vampires, action-thrillers, etc. For mass-market paperbacks, pretty much everyone’s sales are significantly down, and some big-name best-sellers, while hitting new highs in hardcovers, are seeing sales losses in the millions in paperbacks.

For the struggling midlist author, the near-stable hardcover sales just aren’t enough to cover the huge decline in mass market paperback sales. Of course, there are always new authors, but, frankly, most of them follow Aubrey’s pattern, except more quickly these days.

Paperbacks used to be where readers picked up “new” authors, or those they had not read, that and the libraries, but library budgets and acquisitions have been drastically slashed, so that all too many only acquire the best-sellers, and not enough paperbacks of midlist authors are being printed these days to filter into used bookstores or to be widely traded by friends. The ebook situation doesn’t allow for easy browsing – except through pirating – and the result is, in general, the domination of the market by the established and popular, and their imitators, leavened by the occasional pop-flash writer, while the talented midlist writers, the ones who produced good books, or unpopular great books, are slowly vanishing. Some keep writing on the side, for small presses or self-publish, but because they must make a living doing something else, their output drops even farther… and they continue to lose readers until every wonders, “What happened to Aubrey [or whoever]?”

If pirated ebooks only resulted in a turnover of authors, one could say that it’s a matter of taste and the market should prevail… and, of course, in one way or another, the marketplace will. But the problem is that the turnover in “new” authors is accelerating because it’s more and more difficult for new authors to distinguish themselves and establish a presence, and a growing percentage of those who do aren’t necessarily the best writers – they’re the best self-promoters and the best at imitating whatever’s popular… and, as I’ve said before, even excellent imitation is never as good as good original work.

But then, given how little time so many people have to read anymore, maybe a lot fewer people really want to read good original work that makes them think.

Comments over my last post show just how personal perceptions can color views of matters, especially of law. So… let’s talk about law. In general terms, criminal law is the codification of those offenses which society has termed unacceptable and which the governing authority has codified and promulgated, defining the offense and prescribing the penalties or range of penalties for violating that law. Law is not an “ideal”; it is a code. Nor does that code always agree with what many citizens feel it should be, or even what many people thinks its provisions mean. That’s one reason for courts, and why the U.S. Supreme Court has the power to review laws passed by Congress, or by state and local governments.

Initially, copyright infringement was strictly a matter of civil law, but copyright violations became so egregious in the late nineteenth century that in 1897 Congress enacted the first very narrow criminal penalties for copyright infringement, but in less than a decade it became clear that a more comprehensive approach was required, and the first broad law criminalizing a range of copyright infringements was enacted in 1909. Since then, various provisions have been added to criminal copyright law, including the No Electronic Theft (NET) act in 1997, and the Digital Millennium Copyright Act of 1998.

As is noted by most good property law scholars, “property” is not legally limited to tangible objects, but much of the controversy over copyright infringement or theft of intellectual property lies in the fact that the vast majority of people do not place the same emotional value on the copying of an ebook or a music download as they would on someone taking a physical copy of the same book or a music CD from a store without paying for it. Yet current law places the same value on theft of a digital book or an authorized digital copy of a song as of a physical book or music CD. And it should, because for the bookstore, the wholesaler, and the author, that “free” copy represents a very real loss. It is a foregone sale, just as the theft of a physical book or CD represents a foregone sale. Admittedly, in the case of the book, the physical book costs somewhat more to produce, but the bulk of the production costs do not lie in the printing and binding of even the physical book, and the ebook is priced lower because the physical costs have been deducted.

In the case involving Aaron Swartz, what seems to have been overlooked in many of these comments is the law itself. In 1997, Congress passed the No Electronic Theft (NET) act. Those provisions, as codified in 17 USC § 506 (2)(2000) provide criminal punishment for reproducing or distributing, “including by electronic means, “during any 180-day period, of one or more copies or phonorecords of 1 or more copyrighted works having a value of more than $1,000”. What is often overlooked or ignored is that while looking at or reading a copyrighted work electronically is not a violation, actually downloading a work is, under law, the reproduction of that work.

Like it or not, the physical facts in the case are not in dispute. Whether or not Aaron Swartz intended or did not intend to further distribute the more than four million articles he downloaded, it is absolutely clear that he electronically reproduced at least one copy of each of those articles and that those millions of articles had a sum total value of more than $1,000. He also did this under “guest” privileges used fraudulently, because, at the time, he was neither a student, nor did he register honestly when using the MIT system. Under the U.S. Code, that is against the law.

Whether the law is “right” or not is a totally separate question. If one wishes to live in a nation of laws, then there is the obligation to live by those laws, although, at least in the United States, there is certainly the possibility of changing that law. If one violates those laws, however, there is always the risk of being prosecuted. Aaron Swartz did not believe in the laws, as written for information, and violated them. He was prosecuted.

Should he have been prosecuted in the way the government did? How could the government ignore the illegal copying and downloading of more than four million files once it was brought to the attention of the Justice Department? Not to prosecute would have been an invitation to others to indulge wide-spread downloading and hacking/copying. Just as clearly, no one at MIT understood the significance of the case when they reported it.

Nor do the legal scholars who write articles and briefs attempting to distinguish between “minimal” incremental harm created by personal copying and larger harm created by “commercial” pirating. Admittedly, any individual’s personal copying of electronic articles or books represents minimal economic harm to the copyright holder, but when thousands of individuals, or tens of thousands, download torrent e-book editions, or journal articles, or anything in mass, that individual minimal harm becomes a significant collective harm to the copyright holders… and as I’ve noted repeatedly, that harm is reflected already in sales figures.

But… the Justice Department cannot very well go after tens of thousands of individuals… if it could even locate them. All government prosecutors can do is to go after large instances of illegal copying and downloading… and Aaron Swartz was one of the largest.

In this case, if there is any party responsible for Swartz’s suicide beside Swartz himself, it is not the federal government [and I’m no fan of the Justice Department], but MIT. MIT already had a trial program for open reading access to most of the files, one that, ironically, MIT made permanent after Swartz’s death. If they wanted to punish Swartz, they could have revoked Swartz’s access and any other privileges. They could have filed a civil suit against him or sought damages. From what I can tell, they did none of those. Instead, acting as so many university bureaucrats do, they passed the buck to the Justice Department. Then… when they realized what might happen, they begged and pleaded that DOJ not prosecute. What would have happened if DOJ had dropped all charges or only given Swartz a slap on the wrist? I can just see the headlines – “DOJ Caves to MIT” or “Feds Ignore Reddit Exec’s Piracy.” Obviously, DOJ could see them as well.

There are stories that suggest Swartz had attempted to get a plea bargain, but that DOJ refused any plea bargain that didn’t involve jail time for Swartz, and that Swartz didn’t believe he should serve time for something he didn’t see as wrong. What Swartz – and some commenters here – didn’t understand was that the law is the law, and that following personal feelings of right and wrong which conflict with the law often has a very high price… as it should, because, otherwise, everyone’s personal feelings would be above the law… and that is a recipe for anarchy.

It’s one thing to use those feelings – and those of others who share those views – to change the laws, and that can be constructive, but to flaunt the law and believe that there should be no significant consequences…?

In the end, however, given the outcry over cases such as that of Swartz, and the political pressures, those who want intellectual property cheaply, or for free, will likely win out in any venue where the product can be duplicated almost effortlessly and cheaply. The result will be that “popular” culture will sink even below mediocrity and that the vast majority of work of originality and quality will either be drowned out or lost in the flood of cheap presentations, or funded by wealthy patrons, as music and novels were in the late eighteenth century, or offered in some involved high-technology way that cannot be easily copied, thus making billions for a handful of media empires. Research will dwindle and be limited to the corporate sector in those areas where corporate security and “trade secrets” can offer some modicum of protection. All this cannot help but have a negative impact, both in terms of national productivity and creativity, because “free” does not pay for either productivity or creativity — or the support services they require — and very few people or organizations can afford to produce or create for free.

This past weekend, this site was hijacked by a shady payday loan outfit. It’s the second time this has happened in the last six months, which I suppose, by internet standards, isn’t too bad.

In a related development, Aaron Swartz, who was the co-founder of the information-sharing website Reddit, committed suicide last Friday at age 26. He was considered an Interrnet folk hero for his efforts to make online content “free.” The definitive reason for his suicide is unknown, but he had a history of depression and was facing 13 felony charges, including wire fraud, computer fraud and unlawfully obtaining information from a protected computer, as a result of illegally downloading nearly five million articles from MIT computer archives with intent to distribute the articles on file-sharing websites. His family and friends have issued a statement to the effect that Swartz was trying to make the Internet a better and fairer place.

Also last week, a number of those of us who are science fiction writers received an email invitation to speak at Bexley College in London, offering transport, publicity, and an honorarium. Of course, Bexley is a technical school and unlikely to support a seminar on “The Mystery of Life and Death,” not to mention that the “professor” listed on the invitation doesn’t exist. Needless to say, word spread quickly about this scam.

What I would like to know is exactly how stealing five million articles or hijacking my website for potential gain for a payday loan site has anything to do with making the Internet a better or fairer place. Or for that matter, just how ethical is the cry that “information wants to be free”? How does the epidemic of internet plagiarism do anything to teach students the value of information… or about intellectual honesty?

With the growth of the Internet, the amount of confidence schemes has increased exponentially, and so has the number and breadth of scams, a huge percentage of them targeted at the most vulnerable individuals in society – the less educated [not that some very highly educated people have not fallen for them], the elderly, those in financial trouble, or those who are simply too trusting. While the few big-time information thefts make headlines, even many of those are never resolved, and the perpetrators remain unknown, and it’s just about impossible to make more than the tiniest dent in the volume of successful internet scams and swindles… and, as for piracy… forget it.

No matter what anyone says about pirated and torrent-downloaded books increasing sales… I’m sorry, but the overall figures in the book industry [at least in the field of fiction] give that the lie. Sales are down, and in some areas, such as mass market paperbacks, they’re down at lot, and as I’ve noted previously, ebook sales are far from making up the difference.

Pirated copies of books, movies, and music are theft, pure and simple. Just because someone thinks that the price of a movie, book, or music CD is too high doesn’t justify theft. We don’t justify theft of any other good on the grounds that the price is too high, and we don’t say that other goods that are not essential for physical survival can be stolen because the prices are too high. Moreover, allowing or exalting the theft of information or other intellectual property effectively states that those who create it don’t deserve the same protection as those who produce other goods. Now… some will say that information/entertainment isn’t as vital. Oh… when our society is based on information? And don’t tell me that a Coach handbag, or a Rolex watch or any other counterfeit luxury product knock-off is more important than information or entertainment.

All this brings up the questions: Is the Internet really a force for good? Do its advantages outweigh the drawbacks? And even if it does have a net benefit to society, does it, in its current form, excessively [a matter of judgment, I know] enable dishonest behavior and acts? More important, what, if anything, are we going to do about it?