I'm sorry, but I must take issue with your statement, Conor. We might be getting a bit outside of Free Culture discussion, but it would seem important enough to know where we need to be fighting this battle in the first place. The powers granted to branches of government work such that the two political branches make and enforce laws while the non-political branch interprets those laws. This is important because when either of the political branches create laws we don't like, we have recourse in that we can vote them out of office. The same is not true for Justices who are not popularly elected and who hold their positions for life. If we treat the judiciary as a political branch that can make its own laws, we encourage activist judges (from both sides) who simply steer the law in one direction or another for a few decades to the point where the law has little coherence.
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. > This statement is flat out false, and any Constitutional Law professor would tell you that the Court cannot "usurp any slaphappy legislation by Congress." Whenever Congress passes bad laws, unless they are in violation of the Constitution, the Court must adjudicate based on those laws, not what it thinks the law should be. If you don't believe me, read what Hamilton wrote in Federalist 78: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." This is clearly a political issue. We cannot simply ask judges to ignore the DMCA. We must convince people and Congress to reform it. If we were to try to convince judges that they should overstep their bounds and ignore stare decisis, the results would be much worse. Instead of creating new law that would retain authority over time, we would be leaving an anemic precedent that could be overturned by the next group of five people who disagreed with us. Wm On 10/29/07, Conor Schaefer <[EMAIL PROTECTED]> 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 > > _______________________________________________ > > Discuss mailing list > > [email protected] > > http://freeculture.org/cgi-bin/mailman/listinfo/discuss > > > > _______________________________________________ > Discuss mailing list > [email protected] > http://freeculture.org/cgi-bin/mailman/listinfo/discuss > > > ------------------------------ > > _______________________________________________ > Discuss mailing list > [EMAIL PROTECTED]://freeculture.org/cgi-bin/mailman/listinfo/discuss > > > _______________________________________________ > Discuss mailing list > [email protected] > http://freeculture.org/cgi-bin/mailman/listinfo/discuss > >
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