Sunday, November 16, 2008

RDR Appeals Lexicon Verdict

The Notice of Appeal has been filed. (Thanks to Carlie for letting me know.)

I haven't read much of the online comments about this, because there really is nothing to comment on, yet.

I will say a few things, though.

RDR has every right to appeal. That's part of the legal system. You believe that the trial judge made a mistake, you have the right to get that mistake fixed.

Now, what one says -- that can be limited. You just cannot yell "do over." Most appeals are based on errors of law -- in other words, saying, "sorry, Judge, but you got the law wrong or interpreted the law wrong." Sometimes, it is based on an error of fact: "sorry, Judge, but your findings of fact were wrong." The latter is rarer, because appeal courts do not want to substitute their own judgment about facts for the trial judge's judgment, under the belief that the person who actually heard the testimony has a better understanding of what was said than the person(s) who read the transcript of the testimony.

So, I really don't want to hear about sore losers, or who is right or wrong, or wastes of money, etc. etc.

Also, the appellate court doesn't give a different decision; rather, they usually send it back to the original judge saying "sorry, you used the wrong law, here is the right one, do it again."

This still doesn't affect you. This is still between the parties. Now, what the appellate court ends up deciding may be controlling -- but only controlling over those courts over which it has jurisdiction. Let's worry about that later.

This is no longer about the Lexicon. It stopped being about the Lexicon once the Stanford Law School Center for Internet and Society got involved. Hell, it's no longer about JKRowling anymore, for that matter. This is CIS and copyright; the Lexicon case happens to be the vehicle that CIS is using. CIS really doesn't care, one way or the other, about the Lexicon itself; what they care about is copyright. So as long as they have a chance to clarify, refine, or even change copyright law, they will argue this case forward.

Who do you want to create laws -- judges or legislators? Personally, I have always been of the opinion that ideally the legislative branch creates the laws and the judges interpret. At what point does "interpretation" become "creation"? Discuss amongst yourself. Discuss further how your attitude changes depending on whether or not you agree with what the judges are doing. My personal belief (and I'm not unique in this) is that CIS is going to use the Lexicon case to change the law of copyright and, accordingly, this case will end up being appealed to the Supreme Court. Part of the reason I'm not behind CIS is I think it is for Congress, not the Supreme Court, to change those laws.

Disclaimer: yes, I used to be a lawyer but I don't practice anymore. All the above are short and sweet versions and explanations and interpretations of things it takes a long time to cover in law school.

1 comment:

Anonymous said...

Thank you, Liz, you rock.