Re: Copyright & The New World Economic Order

On 19 Jul 99, Bob Stock <bstock[_at_]mindspring.com> wrote:
>
> On 7/17/99, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > I find it astonishing that so many people on this list apparently
> > believe that the law should be clear and pat and exactly the same
> > for every person and situation, instead of flexible enough to
> > accommodate different sets of facts, circumstances, and points of
> > view. The flexibility inherent in a common law system of justice
> > like the one Americans inherited from the British is precisely
> > what separates a free people from an autocracy.
>
> The law should attempt to strike a balance between flexibility and
> predictability. I would venture to say that American law errs on
> the side of flexibility. Moreover, some might say that flexibility
> is a nice word, and that a more accurate description is "let's toss
> a coin with x [pick your number] sides, one for each factor."

Since everyone else seems to be pig-piling on Bob Cumbow, I might as well quit lurking and join in.

The thing that troubles me about the fair use analysis in the U.S. is not so much the seemingly random quality that Bob Stock mentions, but rather the way that judges can pretty openly apply inappropriate standards as part of their analysis. Cases such as Air Pirates, Dallas Cowboy Cheerleaders, and the Court of Appeals in Campbell are examples of the (I believe) too-common practice of judges allowing their taste and personal morality to shade their examination of the fair use factors. Sure, they go through the motions of dutifully weighing the four fair use factors, but a cursory look at the language of the opinions reveals the (at best) latent disgust the judges hold for the *content* of the expression itself. It is not a stretch to presume that this disgust may have colored the analysis in some way.

This is why I sometimes think that a little randomness might not be so bad. In that sense, I take some comfort in the cases -- not uncommon in fair use jurisprudence -- where the courts can't seem to figure it out themselves. The Court of Appeals will reverse the District Court, and in turn be reversed by the Supremes (Campbell and I think The Nation).

Either way, it gives me concern. Content -based restrictions on expression are troubling for obvious reasons, and the prevalence of judicial confusion in other cases makes me wonder how a person of ordinary intelligence (the "vagueness" standard) could possibly understand what expression is legally proscribed when federal judges can't even agree.

I, like Bob Cumbow, admire the inherent genius of the common-law system. However, where matters of expression are concerned, I would like to see just a bit brighter line.

Happy trails,
Rod

Rod McCarvel
<rod[_at_]seanet.com>

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

          -Anatole France Received on Tue Jul 20 1999 - 19:11:24 GMT