Jason and I were having another one of our quasi-political quasi-philosophical arguments tonight, and I think I finally found a way to express one of my frustrations w/ people and their disparagement of the legal profession. Most particularly, self-proclaimed tech geeks who bitch about legal interpretation of IP law.
Okay, so let's get something straight: I'm not making an argument that IP law as it currently stands is in good shape. I think there is a lot of overhaul that needs to be done to our statutes, our Acts of Congress, our bureaucratic policies, to better reflect the more technologically complex world.
But let's put the blame where it (mostly) belongs. You wouldn't like it if I, a complete novice where computers are concerned, came up and started telling you how that line of code was wrong. That's your area of expertise. The judges area of expertise is to interpret the law *as it is*, not the way he or you thinks it *should be*. He may *hate* his ruling - but if that's the way the law stands, that's what he has to give . . . because that's what rule of law is all about. If the people who enforce the law could change it at their own whim, well, this would be China. I studied Chinese politics, and I don't want that. So first of all, isn't it pretty damn arrogant of all you people to sit there and think that with a layman's understanding of law you are better capable of interpreting it than a judge is? I didn't say you had to like it - I didn't say you had to think it was right. But despite what people think, law *in a courtroom* is not about what is right and wrong. It's just about what it is.
Law in the halls of Congress, however, or in any of the other bodies that are empowered to create law out of thin air, probaby should be about right and wrong a lot of the time. (And even the US Supreme Court doesn't get to create law whole new law. All it can do is give us a new interpretation . . . and that doesn't amount to the same thing. Despite all the jabs about "soft science" and what not, "room for interpretation" does not mean "room to decided what you think is wrong or right." It means "it's possible to make what appear to be logical, reasonable arguments in favor of both sides of this issue, and we need to hear those arguments to decide which one more logically follows from the law as it is written." But this is a separate point.)
How many people in this country vote? How many people in this country write or call their elected officials to say how they feel? How many people in this country actively participate in the democratic process? And sitting on the sidelines saying "Bush/Kerry sucks" doesn't count.
And yet, all those same people who don't vote, and don't tell their elected officials how they feel, are some of the same people who sit there and bitch about the way the law gets interpreted by the judges. It's the lazy way out. If they really cared they'd stop ragging the lawyers and judges and go on to the people who actually write the laws.
It's like the girls on my basketball team who used to say after every game we lost (which was a lot of them) that "it was the ref's fault". Stop blaming the damn refs and start looking where the action is.
Tuesday, October 05, 2004
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3 comments:
I appreciate this perspective, and I think we've had this conversation before. Will you agree that it's reasonable for those of us who do vote, and who have written our congress-critters and other elected officials, to complain when bad laws are passed?
Conversely, is it fair that legislators create laws that regulate technology that they have not taken the time to understand? When the United States was founded, the law-makers who were passing laws governing farming and land use had among them a several farmers (roughly twenty-five percent of the delegates to the Constitutional Convention). You are right to insist that we should therefore nominate from amongst ourselves some technologists to the governing bodies, but who would we nominate, and who would choose them? The trouble with technologists is that we're a divided people. Who would represent us? Bill, Steve, Larry? Linus, Eric, or Richard? The technologists reading this can probably guess the last names of these candidates, while the rest may not have the slightest idea to whom I refer. I can assure you, though, that this is a short list of leaders in the technology arena, and that you would be insane to try to invite them all to lunch at the same place and time, unless you were filming a "Reality TV Show.” An attempt to choose one from among them to lead the technologists would be as conclusive as the 2000 US Presidential elections.
The real fault of laws pertaining to technology isn't that technologists have no hand in creating the laws, it is that the laws are created for the wrong reasons. Which will more likely capture a representative's attention: A letter from a constituent, or a check from a campaign contributor? This is how special interest groups have hijacked the American political machine. This is why technology laws are written not to advance technology, but to advance the profits of the companies who have the money to line the campaign coffers of the politicians who desperately need that money to fund their own advertising budgets. Legislation is presented with the aim of protecting business models, rather than promoting advancement of the field.
The very geeks you fault with failure to participate in the system fail to participate because they feel disenfranchised and hopeless. What chance do I have of competing with the combined advertising budget of Hollywood?
Some still cling to the hope that eventually the Supreme Court will begin to reconcile current legislation with what is right and wrong, as defined in the original governing guidelines for this country. (It is true that the Supreme Court cannot throw out laws because they happen to disagree, but it is the function of the Judicial Branch of our government to rule on the correctness of laws passed by the Congress, based on their agreement with the guidelines presented in the Constitution. Additionally, because the US Legal system is based on English Common Law, the courts do, in fact, by their interpretation of the laws give those laws meaning, and thereby create the functional laws by which we live.) Some of us still take part in the process realizing that many people, such as yourself, will not listen to what we say if we have not paid these dues. Where, though, can you point and show someone that they can make a difference? Alas, we have a chicken-and-egg problem; in order for our votes to matter, we must mobilize en masse, yet how can we mobilize if our votes do not matter?
I do agree with you. What grounds have we to complain if we do not attempt a solution? I would, though, be very interested to hear any suggestions you may have as to what that solution should be.
*For those who would like to check your answers for the quiz in paragraph two, you can find the correct answers below, transcribed into 1337 to prevent simple glances (for most of you) from revealing them before you have a chance to guess for yourselves: 64735, J0b5, 3||150n, 70rv4|d5, R4ym0nd, 574||m4n.
Out of curiosity, what would constitute "advancement of the field?" I strongly suspect that your answer would not be, say, IBM's answer.
Has the law-making system been hijacked by business interests, or have decisions been made that certain legal structures and principles are better for the burgeoning technology industry--which does not necessarily require unbridled technological advancement?
Hmm... I suspect we've had similar conversations as well. I don't really recall spitting ire at judges for rulings I don't find favorable, but I suppose it's possible I have at one time or another. Agreed, it's not the judges' faults, as their job is to uphold the law.
However, as you should well know, their job is to interpret the law as well; if that wasn't the case, "legal precedent" would be a meaningless term. Sure, there are some laws that are probably pretty clear (heh, to lawyers and the like; I don't understand most of that stuff without an executive summary), and I assume that judges don't have much (if any) leeway.
Also, the courts (mainly the Supreme Court) have the responsibility of vetting laws for compatibility with the US Constitution. That's a far cry from the "read the law and do what it says, dammit" that you seem to be advocating as a judge's role.
At any rate, my main gripe isn't with legal interpretation of IP law: I have a problem with IP law itself. Do I think intellectual property is an important concept? Sure. (Though, frankly, I think "intellectual property" is something of an oxymoron.) Do I think creators of works deserve a some amount of protection? Sure.
But, does the current system serve creators and the public good? My opinion on the matter is a big fat No. Hell, look at copyright: it's something like life plus 70 years now. How is that "a limited time" (as enumerated in the US Constitution)? Patent law has a reasonable expiration (14 years plus possible renewal, IIRC), but the types of things that are patentable today is just ridiculous. Trademark law seems to be the only part of IP law that is still pretty sane.
And no, this isn't really the judges' faults. This is the fault of Congresspersons that are too easily swayed by the needs of corporations and special-interest groups. Jack Valenti (former head of the MPAA), when told that "forever" didn't satisfy the Constitution's "limited time" requirement for copyrights, seriously suggested "forever minus one day". These people only care about putting more money in their pockets. They don't care about the advancement of art or technology, or for the artists and creators themselves, which is why the Constitution even makes mention of a copyright-type system.
Anyway, I do lay a small amount of blame on the courts: it is their responsibility to be a check on the legislative branch. But the real place to advocate change is with Congress, assuming we "normal people" can get them to stop legislating with their wallets.
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