tag:blogger.com,1999:blog-5383512304639632735.post2274275408246795393..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: Some additional thoughts on the Tenenbaum fair use opinion: mainly right on fair use, but why all the dicta?Ben Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5383512304639632735.post-32406307335917161522009-12-23T09:12:57.684-08:002009-12-23T09:12:57.684-08:00@Anon 12/23: Yeah, but Nesson has the right ideas...@Anon 12/23: Yeah, but Nesson has <i>the right ideas</i>, and for a lot of people that's more important than the actual content. The modern paradigm is to act as if what <i>should</i> be, <i>is</i>. All we need to do is think the right thoughts and act as if everything were the way we wanted it, and magic will happen to make it all turn out right in the end.halojones-fanhttps://www.blogger.com/profile/05473935330204075559noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-11324135400699861792009-12-23T07:38:26.592-08:002009-12-23T07:38:26.592-08:00Ben,
This may be a totally different topic (and as...Ben,<br />This may be a totally different topic (and as I am putting this as a comment in a two week old post, I guess it may never be read), but I was particularly troubled by this article (link at bottom) where Nesson "responds" to the opinion. And the troubling part is this... Nesson is teaching evidence next semester.<br />Seriously? Look I understand he's supposedly a great mind, but the Tenenbaum case proved that he would fail any evidence exam that he might create for such a course. Perhaps, above anything else, since he is a law professor, what I found most appalling about the case is how thoroughly inept he was regarding civil procedure and evidence rules (I'm sure one could link to half a dozen of your posts on the case pointing to instances of this). The students at HLS are not children, but if, for instance, I was sending my child to an expensive private school, and I found out that his/her math teacher couldn't add, I'd be pretty ticked off.<br />http://www.law.com/jsp/tal/digestTAL.jsp?id=1202436202415&src=EMC-Email&et=editorial&bu=The%20American%20Lawyer&pt=Am%20Law%20Litigation%20Daily&cn=AmLaw_LitigationDaily_20091210&kw=moreAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-81078666286655267852009-12-09T18:51:48.297-08:002009-12-09T18:51:48.297-08:00Instead of "commercial" vs. "non-co...Instead of "commercial" vs. "non-commercial", why not use "financial gain" as defined in Section 101?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-20714404973062004342009-12-09T08:10:02.697-08:002009-12-09T08:10:02.697-08:00"Finally, Judge Gertner states that she is &q..."Finally, Judge Gertner states that she is "very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written" and "urges -- no implores -- Congress to amend the statute to reflect the realities of file-sharing." Order at 34. I believe this passage, which again is completely unnecessary dicta, is inappropriate. A federal judge's role is to state what the law is, and apply it faithfully. (I believe Judge Gertner did that.) But I believe it undermines public confidence in the neutrality and impartiality of the judiciary when a judge steps outside her role in deciding cases, and expresses her personal opinion about what the law should be"<br /><br />I just don't understand this point. Gertner followed the law--to a T, even though it delivered a result that, in her view (and the view of many observers) is unjust. (hundreds of thousands of dollars for 30 songs? Really?). She views it as her duty to uphold the verdict and trash the defense's frivolous position. To render that kind of decision takes tremendous judicial integrity, and only instills confidence in the judiciary's objectivity and ability to follow the law.<br /><br />As to the appropriateness of such action, in many respects that's an angels on the head of a pin-type argument. All I would say is that judges are generalists, not specialists, and generally try to do what's fair in light of their broad experience. In the mandatory sentencing and bankruptcy areas, you will see comments that what Congress did makes no policy sense and that they wish the law were different because their -experience- suggests that the law makes no sense. The idea that they are going to take time out of their schedules to lobby congress, etc is far less likely and more time consuming than a paragraph or two in an opinion. It's then up to the legislators as to what they want to do about it. <br /><br />I see this as far better result for all concerned than the alternative.rumpolenoreply@blogger.com