By that sentence, I meant that Viacom's win, which would secure its
monopoly, would be overshadowed by new laws that would loosen
Viacom's monopoly. Basically what you said.
// Matt
On Oct 29, 2007, at 11:05 AM, Conor Schaefer wrote:
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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