Re: to the point/Latin mutterings

Mark Perkins writes:
>
> While I agree that laws should be changed when there is <no>
> injury/no-one is likely to prosecute/etc., this is not the reality of
> the day to day situation. I am not a lawyer nor legally trained BUT my
> day to day experience is full of people breaking laws and not being
> prosecuted (including lawyers and politicians). And this is before I
> even look at questions of copyright especially electronic copyright.
> I believe that the reality of the latter is that it is impossible to
> use email/bulletin boards, etc effectively without breaking the law -
> its just that most copyright owners (ie. the posters) don't mind!

First, one should recognize that violations of certain laws carry no moral implications - a teacher is not a "bad" person if she miscalculates about the extent of the fair use exception. Second, many of these so called violations would not be so deemed by a court when interpreting the many exceptions to unlawful infringement. Finally, as Mark points out, the law can't forsee all permutations and combinatins that may arise. This is clearly reflected in the history of equity. In the criminal law we have doctrine of prosecutorial discretion, jury nullification, pardon, etc. And we shouldn't forget the general doctrine that a court need not enforce a law that has fallen out of use. I'm sure we can think of many more. Rather than seeing this as citizens "breaking" laws I prefer to see the problem as the law adjusting to excuse conduct that society does not believe warrants civil or criminal liability.

  Don Berman --  

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