I wanted to wait for Matt to respond to William on this before chiming
in. I personally thought Matt's post adequately conveyed the desired
sense of "balance" in the American three-branch style of government.
I agree that it's not desirable, as it would indeed be somewhat against
the tenants of democracy, to live in a society where judges can have
such vast power to interpret laws, that they're pretty much rewriting
them, and that's in some ways quite a real threat. Legal precedents
carry quite a bit of weight, and overturning substantial decisions is
never taken lightly. Remember during the last Supreme Court
appointments, how up in arms many people got, fearing that the
conservative bias would facilitate setting some anti-gay marriage
precedents, maybe even attacking Roe v. Wade?
I think that judges are in this way a little avant garde, trying to
apply aging legal frameworks in rapidly changing times. This is what's
been happening in cases like Grokster and will surely happen in Viacom
v. Google. Congress will try to pass laws dealing with this, but when
the laws don't address the issues at hand, because the incumbents are
too busy riffing on the tubes and bragging that they use "the Google,"
then it's up to the courts to pull weigh in figuring out what's just.
Matt, you end your post with "if we succeed in affecting legal change
through the legislature, its win will be overshadowed by new laws." Did
you mean to say "through the judiciary"? Either way, I think that any
old law or precedent can be overshadowed by new laws or precedents.
Congress can usurp court decisions by passing brand new laws, just like
the Court can usurp any slaphappy legislation by Congress. By pitting
the branches against one another in terms of influence, it is thought,
things'll maintain a reasonable sense of equilibrium, which change in
the long run occurring neither too fast nor too slow.
Let's see how that works out.
Conor
Matt Agnello wrote:
I completely agree, and probably should have been more
clear/less cynical in my explanation. I was more referring to the
Eldred v. Ashcroft decision to uphold copyright extension and not
declare it unconstitutional. Obviously, you could never get a court to
interpret a law in such a way that it basically became a new law -- I
would never want to live in a democracy run that way. In the case of
copyright extension (which is a very specific part of what we're
talking about), because the courts did not interpret the law as
unconstitutional, you would need to convince the legislature to create
a new law to affect a similar legal change. But in the case of major
copyright change, the legislature is the only branch that could ever
balance the varied interests needed to create those new rules.
My ultimate point in all of this is that if you change the
rules, then all those court decisions that uphold the strict monopolies
granted to content industries are significantly less meaningful. So,
Viacom will probably win or settle with Google, but if we succeed in
affecting legal change through the legislature, its win will be
overshadowed by new laws.
// Matt
On Oct 29, 2007, at 10:16 AM, William Norton wrote:
A bit late on this discussion, but I just
wanted to point out a problem with your message, Matt. Your second
paragraph seems to completely disregard the functions and balancing
between branches of government. If all we had to do was convince
courts we were right when our laws don't get passed through Congress,
we'd have a real problem. The function of the legislature is to create
laws. The purpose of the judiciary is to interpret the laws the
legislature has passed -- not to interpret what they should have
passed. If we don't get our laws passed through the legislature, we
change enough people's minds and possibly replace members of Congress
until we get our laws passed. Otherwise, you've given a small,
unelected body the license to create laws and totally usurp the power
or the legislature.
On 10/27/07, Matt Agnello <[EMAIL PROTECTED]> wrote:
> By enforcing their copyrights more harshly, recording and
publishing
> companies will eventually destroy themselves.
Agreed. But the question becomes, will it happen before or after the
freedoms of the Internet are also destroyed?
The politics game is generally balanced: if you can't get the courts
to give you the interpretation you want, you go for the legislature.
If you can't get the legislature to pass the laws you want, you get
the President not to sign their laws anymore. If you can't get the
President to go veto crazy, you get the judges to interpret them your
way, and so on. If you can't get anybody to go along with you, you're
either crazy or going about it the wrong way.
What court cases like this tell us is that we shouldn't focus on the
courts. The old laws favor the content industry. We require new laws,
and new laws require new norms.
Norms come very, very slowly. People don't change their behavior
quickly, but they can be influenced to change their behavior in times
of transition. That's what the court battle is trying to ensure, that
people stick with the old system as much as possible as the Internet
matures. We have to fight against that in another arena. By providing
easy ways to share content that's legal NOW and convincing people
it's a good thing, we can change their behavior, and when the law
comes into contact with that behavior, laws will change.
Here's the catch: It requires solutions people can accept right now.
It took years to get gay rights issues out in the open. Most people
don't care, because most people aren't gay. Similarly, most people
aren't content creators. But the Internet increasingly allows that,
and the more people are encouraged to create, and the more they run
into problems doing what they want to do, the more their norms will
change.
// Matt
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