Howard Bashman's essay on Eldred - I've always liked Howard's blog and have touted it to many people, but, even so, today I was surprised, and pleased, to read his post about Eldred. I liked it for a strange reason that will be hard to explain. He says that at some level he wishes he shared the enthusiasm of the many people who passionately disagree with the Eldred ruling announced today by the U.S. Supreme Court. But he views the Supreme Court's decision as well-founded.
First, I was captivated by Howard's expression that he wished he were more enthusiastic about those who favored Eldred's position. Howard is a very astute lawyer, and he has a keen grasp of legal issues and of the state of the law. It's hard for the average person who is not a lawyer to understand how the Supreme Court justices could reach the decision that they did. I wish the Supreme Court had ruled differently, but that is me wishing that as a person. As a lawyer, I don't view the opinion as outlandish (I disagree with it, but I am not shocked).
An outlandish opinion is one that is morally wrong and legally unprincipled. But even a correctly decided opinion can be marginally outlandish if it is unprincipled. For example, many of my non-lawyer friends (especially the liberal ones) have trouble understanding how I can believe that abortion should be legal, but --at the same time-- say that I think that Roe v. Wade was wrongly decided. I think it is dangerous to be so willing to reach a result that one gives little consideration to how one gets there. So what does that have to do with Eldred and Howard's post? Well, just this. If we are to have a meaningful and principled legal system then it can't be based purely on what we think the best result should be.
I mean why bother to even pretend that you have a legal system, if that's the approach you are going to take? A legal system has rules and precedents that guide us because they are predictable, even if they are (according to some) wrong. But predictability and adaptability are different things, and a legal system can be predicatable more easily than it can be adaptable. The advent of the Internet and the rapid pace of technical advancement are placing strains on the law that may be unprecedented. The law is not adapting quickly enough for many of us. One reason, I think, why we who live in the Internet view the Eldred case as so important is because we are impatient. We want the law to foster the values that we believe are important. And believe me no one is more impatient and disappointed with laws like the DMCA and CTEA than me.
But like I said when I read Howard's post it somehow made me feel better. Why? Because I realized that there are reasonable people who (like Howard, have no axe to grind, and even want to believe in the Eldred arguments) can accept the Supreme Court's decision as rational.
I don't think there are many of us, if there are any, who can see around the corner to know how this struggle to balance the interests of the public with the interest of the copyright holders will play out. But the law (especially the Supreme Court's interpretation of it) isn't the public's only source of power. If people collectively assert their will (as I think they already are doing) and rail out against stupid laws like the DMCA, and express displeasure with legislators who vote for copyright term extensions, then that will have a significant effect. Change is coming, and we are not powerless to control it.
Meanwhile, let's not let our passions get the better of us. Reasonable people can apparently disagree about the legal issues that the Supreme Court grappled with in Eldred. The Court viewed the case as a case about Congressional power and came down on the side of Congress. So let's turn our passions toward Congress and let our displeasure be known there. Let's focus our power on the legislative branch, rather than waste time criticizing the judicial branch. And let's try to keep a healthy sense of perspective.
11:54:16 PM
PDF and eGovernment - some useful information from Phil Windley about a presentation on use of PDF in government. I didn't realize that Acrobat 5 had some XML capability. But that's not surprising because I don't know what's under the hood. I just know that PDF is being increasingly used by courts that mandate electronic filing, and I happen to think that its a pretty useful tool. More lawyers should consider the benefits of PDF files. I have a page about Lawyers using Acrobat over here.
6:55:27 PM
Strange Headlines - From CNN I found the following headline in my news aggregator: Lawmakers reach South Pole. Which upon seeing I muttered to myself, "yeah, and I hope they stay there." But that's probably just misplaced anger over today's Eldred case ruling. I don't blame the Supreme Court as much as I do Congress.
6:48:00 PM
Discussion Groups for Kids' School Information - one of the parents in my 5th grade daughter's class started a Yahoo group recently because she thought it would be a good way for the parents to share information about school/class issues. I have used Yahoo groups, but up to now they have mostly been set up by businesses. I think this is really a cool idea. I'm guessing that something like it will catch on because it makes so much sense. Increasingly parents want to share information about their kids with other school parents. But increasingly we all lack the time to have face-to-face gatherings, and phone calls are also cumbersome and time-consuming. Weblogs may have a place, but they are too open. An E-mail discussion group is perfect.
First of all, I want to say that Larry Lessig is to be commended for his heroic efforts. I haven't read the opinion but I am sure that it will reveal that larger forces dictated the ruling. I don't think that there is any way that Lessig could have won the case. I hope one day to have the opportunity to shake his hand and thank him for trying.
