19 July 2003

As an attorney, one unwritten professional responsibility that I have is to attempt to educate both attorneys who do not practice in my area of law and nonattorneys about the general structure and requirements relevant to that area of law. Contrary to the nonsensical propositions put forth by the various bar associations, lawyers are specialists—and far more so than physicians, despite the absence of a specialty-board certification (aside from patent practice before the PTO). For example, when is the last time that you heard an individual physician proclaim that he/she is ENT certified, true, but only works on problems from the left side of the throat?

This specialization can lead to both advantages and disadvantages. The obvious ones are the advantage of deeper and more detailed knowledge of an area under discussion and inexperience in other areas of law. In turn, this leads to improper analogization—a logical flaw that is shared pretty equally among practicing lawyers, academics concerned with legal issues (who may or may not be lawyers), and nonlawyers with vested interests in issues. More on this anon.

The other unwritten professional responsibility that I referred to previously concerns the propriety of argumentation. Basically, attorneys in most states are required to advocate for their clients; in some states, they are required to do so "zealously." The difficulty arises in general discussions on law that are not directly related to representing any particular client. All too often, lawyers—particularly those of us who start with a more theoretical bent, and I am not excluding myself—try to turn this grey area into a black-and-white test. It is not, and cannot be.

The exchange between myself and Professor Solum illustrates some of these difficulties—rather poorly, as the argument has been neither vituperous nor highly technical, which I consider fortunate—and how they are barriers to both communication and to advancing the state of the law. In a way, I had a hidden agenda in engaging in this exchange: I wanted to expose two basic logical flaws that infect all legal analysis, whether by practicing attorneys or otherwise.

A. The common law is, by its very nature, inductive. That is, it draws from one, or at most a few, specific instances to create a proposition of purported general nature. This can be a perfect valid method of logic. Unfortunately, it also leads to sequences of reasoning like this one:

A1. African American schoolchildren in Topeka, Kansas were segregated
A2. The segregated schooling was inferior
A3. No counterexamples of truly equal or superior segregated schooling were presented
A4. Therefore, segregated schooling violates equal protection
A5. Therefore, consideration of race in allocating educational resources violates equal protection
A6. Therefore, affirmative action plans, because they consider race in allocating educational resources, violate equal protection

The logic problem here arises between steps A4 and A5, and again between steps A5 and A6. The hidden proposition is this one:

A4.1. All means of creating segregated schooling that we have now agreed is improper necessarily involve an improper consideration of race

This proposition may well be true; however, it is true as a value judgment, not as a logical consequence. Cf., e.g., W. Brian Arthur, "Inductive Reasoning and Bounded Rationality".

B. Because all law (except the illusive "natural law") has at least a considerable inductive component to it, it is particularly vulnerable to the fallacy of the false dilemma, which arises from assuming that a bipolar policy statement contains the exclusive definition of all possible alternatives. One common—but neither compelled nor universal—statement of the false dilemma in this particular context is something like this:

B1. Some, or even many, copyright holders/controllers use copyright to inhibit free expression and the production of new works in the arts
B2. These Abusers constantly press for the extension of both temporal and other limitations on their ability to control direct and derivative use of their works
B3. Therefore, the scope of temporal and other control of copyright holders/controllers must be radically reduced

The difficulty is the jump between steps B2 and B3. Again, it may be true as a value judgment—I deny it, but those are my values—but it is not compelled by logic. That jump fails to account for alternative means of negating the circumstances stated in step B1 by looking at the behavior of only the abusive parties. As an alternative, I proposed greatly limiting membership in the class of those who abuse copyrights, by (for example) reforming the definition of "work for hire" in a way that allows the actual creator(s) to terminate the transfer at a later date, without altering the other aspects of copyright. Whether or not this is the best possible solution, it demonstrates that there is an alternative to chopping copyright terms back to "five or ten years" (or whatever) for everyone. Since there is an unconsidered alternative to the exclusive-or reasoning presented, that reasoning is not compelled by logic. (That this conclusion itself depends upon an exclusive-or lemma—something is either logically compelled or it is not—has not escaped my notice.)

In summary, not all legal reasoning—and particularly not all legal reasoning on "intellectual property"—has compelling logical antecedants. For some propositions, there very well may be compelling policy antecedants. However, by definition policy antecedants do not have universal application, while logical antecedants do. Recognizing that difference is an important first step toward helping authors understand other aspects of intellectual property, particularly those related to "fair use" (or "fair dealing"), "plagiarism," "attribution," and many other fact-specific issues.