Cold water

Expelled revisited 

 A couple of years ago, I wrote in defence of the makers of Expelled, who'd used a small amount of John Lennon's song "Imagine" to make a point in their meretricious film. Jim Lippard has a very good summary of events in both the real world and the blogosphere here. Although I don't claim to be an expert in intellectual property, and particularly on the American statutes and case law, it seemed to me throughout that the principles behind the law should favour the makers of the movie.

When the case found its way to court, the judge ruled in their favour, using reasoning quite similar to mine (though obviously far more informed about the detail of the actual law).

Although Jim Lippard took the same view as I did, we were swimming against the tide of opinion in those waters of the blogosphere that we tend to frequent. I was amazed at how many atheists, sceptics, and freethinkers suddenly became advocates for the most overreaching aspects of intellectual property law, not to mention the extravagantly generous interpretations of it in the practices of the American entertainment industry. It seemed that they became zealous advocates of IP rights because the "bad guys" in the case under discussion were the ones who were arguing for fair use and for constraints on intellectual property in the name of free speech. They were not standing back and thinking about what the policy of the law - which applies to both "bad guys" and "good guys" - should be.

Despite the shoddy aspects of Expelled, which features a defence of Intelligent Design and involved various morally questionable practices in its making, intellectual property rights, specifically those relating to copyright, are an artificial exception to our freedom to use information. There is a reasonable policy behind intellectual property: it rewards efforts in creating such things as inventions, designs, stories, songs, and so on, and thus encourages creators by giving them a source of income, even wealth in some cases. Fair enough so far. But it thereby carves out an exception to the ability of people to say what they want, adapt the inventions of others to their own purposes, etc. The exception can't be allowed to swallow up the rule. Intellectual property rights should not be used to wipe out large areas of free speech.

On pouring cold water 

Now and then, I am going to pour cold water on the enthusiasms of people who are generally my allies but don't necessarily have a good understanding of how the law all fits together, or of the policies and principles behind it. The controversy over Expelled and its use of "Imagine" was one such example. Obviously, no one has to defer to me. In some cases, my views on legal principle will not be supported by courts when push comes to shove (though I have a pretty good success rate over the years, both in my prognostications on this blog and during my years of quasi-legal work and my briefer time in professional legal practice). Be that as it may, I'll go on saying what I think about the law and the policies and principles behind it, even when I find myself in the uncomfortable position of having most of my friends disagree with me.

Arrest the pope? 

No one will disagree with me, I imagine, in my support for the reasoning of the Court of Appeals in the UK in Simon Singh's libel case. I think the logic of the joint judgment is very compelling and that there was little prospect of challenging it successfully in the Supreme Court (formerly the House of Lords - a judicial body that is not the same as the upper house of parliament in the UK). It looks as if the BCA has come to the same conclusion, based on its legal advice.

But some are certainly going to disagree with me when I say that the current calls to arrest the Pope when he visits Britain later this year are legally misguided. It only took me a few hours of research on the internet to conclude that the legal theories being offered by Geoffrey Robertson and others are very dubious. My first response of any substance was in a comment over at RD.net:

If Geoffrey Robertson wants to test the law on these issues, I wish him every success. I have to say that I don't think the case will succeed. The claim that The State of the Vatican City is not a legitimate country in international law looks murky to me. It does look as if it's legally a country, even though not a UN member, and that the pope is its head of state. And then there's the legal effect of the fact that the pope is also the head of the Holy See, to which the UK doubtless provides an ambassador and which it otherwise recognises as a sovereign entity in its own right (in addition to Vatican City). That alone would seemingly give the Pope immunity from prosecution in the UK. And odious as the institutionalised sexual abuse of children within the care of the Catholic Church has been, this is not a classic case of crimes against humanity. Normally, you'd think of a campaign of persecution by a country or an unofficial regime of some kind (like warlords or rebels who are in control of territory). In the classic kind of case, they'll be mounting, or at least somehow allowing, a recognisable campaign of persecution and terror against either a group of their own citizens or people who live in territory where they've established control. What we have with the Catholic Church's institutionalised cover ups of rape and other abuses by its priests, etc., doesn't easily fit that picture. There's a legal definition, and arguably it can be broader than that sort of case. All the same, Robertson will need to work very hard to show that this situation falls within the definition, rather than just being a whole lot of largely-unconnected crimes in many different countries, properly falling under the ordinary laws of those countries. All that said, there's at least been something like "a wide practice of atrocities tolerated or condoned by a government or a de facto authority" if you read those words cold. I can see why somebody like Robertson would be prepared to argue about how far the wording stretches to cover unusual situations. So why not get the point clarified by the courts, if possible? 

I've now changed my mind about this. I was right to think that Robertson's theories are dubious, but I now think that I initially underestimated just how dubious they are. It now appears to me that Robertson is seeking a very expansive interpretation of an area of international law, i.e. the law relating to crimes against humanity, that is intended to be construed strictly and narrowly. For a stronger dose of reality, see this thread on Jack of Kent's blog. Robertson has a powerful legal mind, of course, but he is also pushing very hard against the limits of the law. My confident prediction is that none of this will intimidate the pope into cancelling his visit to the UK. When he visits to the UK, he will not be arrested for any crime.

"So what?" you ask. So, let's be responsible 

"Fine," you say, "but so what?" Why not use discussion of the outer, speculative limits of international law as a way of giving publicity to the pope's past involvement in the practice of transferring pedophile priests to new parishes, rather than removing them from the priesthood? Well, I'm all in favour of publicising this. The Church's approach did enormous damage, and we can see what a morally corrupt institution it is. But I'm not in favour of obtaining publicity by spreading to the public highly speculative, and probably incorrect, theories about the law. Not unless we give them something more like the full story.

In my opinion, Robertson's conduct is getting close to irresponsibility. I say "getting close", because there is a degree of hedging when you read what he says carefully. But Robertson is a noted expert on international law, and people who are not expert - and especially people with no legal training - are likely to defer to him. Some are not noticing the degree to which he is hedging, and, frankly, I don't think he hedges anywhere near enough to provide a realistic impression. It would be good if his public pronouncements contained a stronger element of realism, amongst the creative theorising. 

If you take Robertson's theories as fact, or as the nearest thing you can get to it in the law, you'll be misled. For scientists, they are the equivalent of a radical and untested set of hypotheses, not the equivalent of well-corroborated theory. I wouldn't want to square off in a courtroom against someone with Robertson's legendary forensic skills, but I don't trust his judgment (at least as he's expressed it publicly so far) on this issue. He's writing like an advocate in the courtroom, putting a brave legal theory in rather one-sided way. That's what barristers do (of course, it's the opposite of what philosophers do, and also the opposite of what barristers do when actually preparing to go to trial; in both of those cases, the task includes identifying and considering the strongest case for the opposing viewpoint). 

No matter how skilled a lawyer Robertson may be, he's not necessarily correct on any particular question of law that hasn't been tested. In this instance, I think he's almost certainly wrong if he thinks there's any reasonable legal prospect that the pope could be arrested in the UK for crimes under any municipal jurisdiction or under international law. That's not going to be a popular conclusion among my friends, but it's what I honestly believe.