tag:blogger.com,1999:blog-12505562.post8332705395398959430..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Judge Posner’s “How Judges Think”William Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-12505562.post-36856227580849147212008-04-26T07:35:00.000-04:002008-04-26T07:35:00.000-04:00Anon, a postscript to my answer: I am not the only...Anon, a postscript to my answer: I am not the only person who shares such a negative view of academic writing on the topic. Justice Breyer, who had been chief counsel to the Senate Judiciary Committee, and Abner Mikva, who served in the Illinois state legislature, as a member of Congress, as a court of appeals judge for the DC Circuit and as counsel to President Clinton, thereby serving in all three branches of government, agree academic writing on the topic bears no resemblance to their experience in the legislative branch.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-48887721190364884032008-04-25T17:44:00.000-04:002008-04-25T17:44:00.000-04:00Anon: fair question. Here's the answer. I read all...Anon: fair question. Here's the answer. I read all that material as research for chapter two of my treatise, which deals exclusively with statutory interpretation. I wanted to make sure I was familiar with the existing literature. Having published the book (and therefore the chapter), I have not read any further academic writing onm statutory interpretation precisely because it is useless.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-6864646999514392792008-04-25T16:33:00.000-04:002008-04-25T16:33:00.000-04:00..."the hundreds of articles and books I have read......"the hundreds of articles and books I have read by prominent scholars of statutory interpretation bear no resemblance to the work I did professionally, and as a consequence, are of zero utility other than in furthering academic careers."<BR/><BR/>Then why do you continue to read them.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-22377073734057932322008-04-08T17:30:00.000-04:002008-04-08T17:30:00.000-04:00I should have said "perceived" problems, because a...I should have said "perceived" problems, because as you infer some legislative efforts involve things that aren't problems, or at least in hindsight turn out not to be problems. <BR/><BR/>As for your questions, my view is if the law is clear, but is based on a bad judgment call about the problem, there is no role for courts to correct the judgment call, assuming it is constitutional. All of chapter 12 of title 17 falls into this category to me, as well as term extension.<BR/><BR/>On your second question, I have a low opinion of most experts employed in copyright cases, and on technical issues the expert in Computer Associates v. Altai is an example of why: the expert had strong views on what the scope of copyright should be, and this greatly influenced his testimony and the court; indeed, I believe he came to misapprehend his role, submitting his own amicus "brief" on appeal.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-29615149764284968052008-04-08T17:13:00.000-04:002008-04-08T17:13:00.000-04:00You wrote:“Legislatures act in response to problem...You wrote:<BR/><BR/>“Legislatures act in response to problems—legal, political, social, cultural, or all of these—and since at least the 1584 opinion of the Barons of the Court of Exchequer in Heydon's case, … courts have attempted to interpret statutes consistent with their perception of the legislature's purpose. …”<BR/><BR/>A handful of quick observations, then two questions:<BR/><BR/>It seems to me that several problems with proposed or passed copyright legislation arise from trying to apply a legal regime that is rooted in an analog, material world to a digital, intangible, networked world. I don’t have any problems with copyright; I do have problems with copyright as it gets applied to today’s political, social, and cultural environment. <BR/><BR/>(As I write this, I am trying to ignore the pervasive influence of lobbying.)<BR/><BR/>Further, I don’t have confidence that legislatures understand the current political, social, and cultural environment, or the changes technology has wrought to this environment. The reasons vary for this lack of understanding. Still, I don’t see how one reasonably can legislate about the ground rules of a digitally networked information economy without having a strong, fundamental understanding of a digitally networked information economy.<BR/><BR/>If a court is supposed to “interpret statutes consistent with their perception of the legislature's purpose,” but the legislature’s purpose is misguided by core misunderstandings, then it seems it is easy for judges to reinforce the mistakes made at the legislative level.<BR/><BR/>So, two questions (concededly, perhaps not answerable here):<BR/><BR/>- If a jurist concludes that the legislature misunderstands the nature of the problem, or the legislature misunderstands the environment, to what extent does (or must) a jurist use an opinion to rectify this misunderstanding?<BR/><BR/>- In your experience, when would a jurist employ a technical expert to assist the court in understanding a technical environment or issue so the jurist can write an opinion that accurately reflects the law within the proper context?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-16453568030939597102008-04-08T05:32:00.000-04:002008-04-08T05:32:00.000-04:00Great post Bill, I enjoyed reading it. And it just...Great post Bill, I enjoyed reading it. And it just reminds me how the Civil Law countries differs.Tomasz Rychlickihttps://www.blogger.com/profile/04873946249306047539noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-80241352962883287792008-04-07T19:38:00.000-04:002008-04-07T19:38:00.000-04:00I will have to buy R Posner's latest.Excellent pos...I will have to buy R Posner's latest.<BR/><BR/>Excellent post!Anonymoushttps://www.blogger.com/profile/03081983465036974432noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-69289456376858481712008-04-07T18:54:00.000-04:002008-04-07T18:54:00.000-04:00I'd really like your thoughts on this post about c...I'd really like your thoughts on this post about copyright law and altering jpg images.<BR/><BR/>http://www.myartspace.com/blog/2008/04/art-space-law-ripped-and-altered-what.html<BR/><BR/>I thought that altering was ok to a point, but this attorney says that any alteration of image of an original work of art by photoshop or other tool is against copyright.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-71191816386436312532008-04-07T17:29:00.000-04:002008-04-07T17:29:00.000-04:00I agree with 'anonymous;' what a great post and gr...I agree with 'anonymous;' what a great post and great endorsement. I also plan to buy the book.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-82529290751127029612008-04-07T13:13:00.000-04:002008-04-07T13:13:00.000-04:00This is one of your best posts yet! It is also why...This is one of your best posts yet! It is also why I read this blog. The posts tend to be a mix of practical and theoretical without throwing in a bunch of politics like some of the other law blogs do (which I stopped reading for that reason). I am going to get this book.Anonymousnoreply@blogger.com