Re: use of electronic materials

Mary Brandt Jensen writes:
>
> Part of the problem is that we don't have a lot of case law on these
> issues. We have some case law indicating that the courts are not
> as likely to reread statutes as we might like. And we have some 20
> year old legislative history. And we have a lot of cases where people
> sue each other and settle before we get reported court decisions. That's
> not a lot of use in trying to figure out what is legal and what isn't.
> One thing I am pretty sure of is that some publishers are willing enough
> to sue almost anybody. Technical applications of the language of the
> law give may give them a basis for doing so without their suits being
> deemed frivolous. And it may cost more to defend such suits than
> the defendants can spend. One caves in and so another publisher may
> be encouraged to sue. More defendants get scared. The resulting
> spiral ends up in people being scared to exercise their legal rights
> when they aren't crystal clear which may lead to a practical narrowing
> of those rights. At least these discussions keep us thinking and
> give us arguments to use if someone trys to stop something we think
> is reasonable.
 

All true - but one can not guarantee that the legislative process might not result in an industry obtaining rules that are worse than what we now have in an uncertain world. At least under the current system a few brave litigants and some enlightened courts can fashion sensible rules. Historically courts have not done too well in adjusting the copyright statute to new technologies. In many cases there tendency has been to fail to extend copyright protection - this might not be too bade if it were carried over into the electronic media. Unfortunately, I do not get the sense that courts are proceeding in that way. So I do share many of your concerns. I guess I just fear more what Congress might do.

  Don Berman --  

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