The Point of All This

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Some more legal facts of life. – Ed

From some of the responses I’m getting, I know whom I’m not going to hire should I need legal assistance anytime soon. 🙂

A few of the responses I got seem to accord the Court of Appeals with about as much legal weight as somebody posting in a forum. Certainly no more (and usually rather less) than the writer’s personal opinion.

I have some bad news for you. In our society, courts decide what the law is. Taking into account appeals and the like, they’re the ones who decide. Not you. Not I. It is their opinion that counts. Not yours, not mine.

If the courts find that the DMCA or laws like that meet constitutional muster (which from every indication they pretty much will), that’s the law. Period. Unless the law gets changed.

Understand something about how courts work. Courts exist to interpret and enforce the law. In the United States, the only way a court can set aside a law is to find it unconstitutional. Generally, this is a pretty rare phenomenon, and as a rough guide, the law has to be pretty outrageous for them to do so.

Now you may think DMCA or Senator Hollings’ brainchildren are pretty outrageous. The courts don’t think so, and it’s their opinion that counts. Not yours. Not mine.

However, this does not mean these laws are set in stone. If Congress passed a provision tomorrow saying MP3s were OK, the RIAA would be in court in about three seconds, but the courts would probably find no constitutional problem with the MP3 law, either, and uphold it.

The general concept of copyright is a very important one in a developed free-market society. Intellectual property has value. If people don’t get a chance to be paid for their intellectual efforts, they won’t do them. If you would like to look at a society that ignored this, look at the Soviet Union.

However, the details of copyright law are not sacred. For example, you can be all in favor of copyright protection, yet still oppose the current attempts to extend it past the current 75 year period or even want to roll the length of that period back.

Copyright law is essentially a political matter. So long as the laws don’t go way off into the deep end either way, the courts are pretty much going to follow them.

You Don’t Have To Agree With Me To Learn Something Important

Right now, when I look at this community on the one hand, and the political and legal forces on the other, I see a pro wrestler posturing and flexing his muscles and saying how unconquerable he is just because it’s him standing in front of a moving steamroller. I don’t think you’re going to get steamrolled; I know you’re going to get steamrolled.

Unless you do something about it. Something serious about it.

Some of you get this, but more of you don’t.

Now would somebody getting paid off by Disney or the RIAA say something like that (like some of you kneejerk to me)? The last thing in the world they’d want is that. They know how to play this game, and they know you don’t, and even better in their eyes, don’t want to know.

The great irony is that many of those who find what I say ridiculous, evil or stupid because of their personal beliefs are actually Disney’s and the RIAA’s biggest friends, their unwitting stooges. They’re like people who show up for a football game without helmets and protective gear.

Are the record companies and the RIAA a bunch of greedy SOBs out to grab anything they can for themselves? Of course they are. They know how to play the game, and they’re showing up prepared. They got the gear, the lawyers, and even help the referees out with their mortgage payments.

Now I have a great deal more respect for intellectual property and the rule of law than many of you. I think I have good reasons for that, one of the bigger ones being that these are society’s rules.

However, that doesn’t mean I have to swallow everything that comes out of the mouth of Hilary Rosen or Michael Eisner, either. There’s certainly middle ground in this arena.

But agree with me or not, anybody should be able to see that a football team wearing full gear and with plenty of money behind it is going to wallop a bunch of people walking around naked, unprepared, and not even aware of the rules of the game.

Can these folks be totally defeated? Probably not. Can they be beaten back? Absolutely. But it will take effort and more importantly in this particular game, money. Anything less is a forfeit.

Now I’m certainly not going to lead that charge, so I’m not going to benefit from it. Those who’ll benefit are those with whom I usually disagree. But my God, at least make it a game.

Now if you want to show up naked on a football field not knowing anything about tackling or touchdowns, and denounce me for giving you scouting reports which suggest that you’re going to get your ass kicked if you show up that way, go right ahead. The RIAA will love you for it.

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