an important week
This is an important week. Monday, the FCC rules on its mediacon rules. Monday could also be the day the Supreme Court decides the Dastar case. But most important of all: Wednesday, the 7th Circuit Court of Appeals hears the Aimster case.
EFF has written an amicus in the case (have you contributed yet?). EFF's core argument is that it is time that a Court of Appeals properly interpret the Sony Betamax case. Of all the Courts of Appeals in the US, this is the best one to hear this issue. (Bias-meter reading: high. I clerked at that court). Let's hope it hears it well.
This has been an issue close to my own heart. The best thing about Sony is that it recognized the harm that legal uncertainty can impose upon innovation. If innovators have to guess how a federal court will balance the effects of its technology upon copyright interests, then there will be less innovation. Thus the genius of its rule was that it said essentially this: if your technology is "capable" of a "substantial noninfringing use," then the question of whether your technology should be permitted is no longer a judicial question. If it is capable of a substanial noninfringing use, then the question of balancing (which is always at the core of copyright) is left up to Congress.
The judges don't get announced in a case in the 7th Circuit before the argument, so we can't know who will hear the case. But if you're anywhere close to Chicago, you should go see the argument. It is said that Aimee Deep will be there. But whether true or not, the freedom of that spirit will at least have a chance in Chicago.
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Comments (9)
In Chicago. [check]
3 Finals on Wednesday. [check]
Going to see the Aimster arguements? [ ]
Alas.
-kd
older but wiser. happy b-day.
hope 1 of your wishes comes true.
Any idea on the procedure for attending? Get there early? Wait in line? Or is it so big everyone will fit?
Or when it will start? (The website seems to only have Friday's calendar.) Can you come approx. when the case will start or do you have to stay through from the beginning?
If it is capable of a substanial noninfringing use, then the question of balancing (which is always at the core of copyright) is left up to Congress.
Given Congress's predilection lately for favouring companies' self-interests above those of the commons, and especially given the elimination of "leeway" (as David Weinberger puts it) in technologically-mediated enforcement of rights, I'm not so sure this is necessarily a good thing in all respects. For instance, digital enforcement mechanisms tend to forget about "fair use" and "first sale" in their implementations. Could it be possible that the legislative process may be somehow tainted by corporate copyright holders?
It is "not necessarily a good thing" but it is better than courts deciding the issue. It at least turns the issue into a political issue, and saps the moralisms from the debate.
Re mechanics: You can come when the case is expected. There is not usually much of an audience. But this may be different. I'm surprised the clerks office doesn't have a better schedule, but it is because the judges aren't announced till the day of argument. So you apparently need to call the clerks office to get the timing.
The notice we received from the Seventh Circuit said the oral arguments would be at 10 AM, with each side given 20 minutes for argument. But of course as Professor Lessig says, there was no notice of which Judges might be on the panel.
I hope to see any friends there!
When the Law, and Justice abandons real Persons (as opposed to corporate ficta) then the People thus aggrieved go elswhere.
But without Law, they have to take guns with them instead. Their propensity to take cash along, however, continues to be a proposition with dwindling returns. Other means of trade and barter work better and better as this lunacy unfolds.
Perhaps corporations should no longer be considered legal persons? That might put a small finger in this eroding dike.
fwiw,
jd
Time Change!! Just found out when I got home from school that the time of the Oral Argument is now 9:30 AM - it's now the first argument of the day... and I'm also told the Court always starts right on time!
There's a link for directions to the Courthouse on my Aimee Deep blog. Please say hello if you can make it!
Can someone say more about how we know when courts should decide something, versus Congress?
Is it right to think of Eldred as a case where many of us thought that the Court should trump Congress, arguably because of a Constitutional limit, but perhaps more honestly because we are afraid that big business is too represented in Congress whereas the public domain is rather ignored?
But if Congress is the wrong institution there, why is it the right institution here? And how do we know? The answer can't be "because a court told us so" -- that is just too circular. Is it because copyright requires so much balancing? But has not Congress explicitly and implicitly assigned that job of balancing to the courts, for example by making "fair use" an equitable test with suggested factors but few clear lines?