"as shown by clear expression or other affirmative steps taken ..."

"as shown by clear expression or other affirmative steps taken ..."

Posted Jun 28, 2005 14:07 UTC (Tue) by kleptog (subscriber, #1183)
In reply to: "as shown by clear expression or other affirmative steps taken ..." by yokem_55
Parent article: Supreme Court rules against file swapping (ZDNet)

I think what is clear is that the SCOTUS didn't want to give a free-pass to every technology just because there are legitimate uses. As with murder and manslaughter, the effect is the same, it's the *intent* that's relevant. Ofcourse, people might have assumed they had a free-pass since Sony-Betamax but TANSTAAFL.

How do you determine intent? The same way as in murder trials, by looking at the evidence on a case-by-case basis. It is not the supreme court's job to define the rules, that's the legislature's job. The supreme court rules on fuzziness in issues presented to it.

Anyway, the lower courts will now go back to the evidence presented and decide whether *this case* falls under the guidelines suggested.

If you want clear rules, you need to be knocking on legislatures door. The legal system can only (by definition) decide on individual cases.

This is however an interesting distinction between civil and common law systems. In civil law (ie mainland europe) it is considered the role of the legislature fix found problems in the system. In common law (ie the US) it is the court's problem to patch what the legislature broke.

As an aside, one interesting idea would be for people or organisations to PGP sign lists of checksums of files they consider free to distribute. Then you could fire up your P2P client and tell it to only list stuff considered by that party to be free. Ofcourse, this could also be used by hacker X to sign files he ripped saying that he offered a certain quality. I think the fact that at the moment there is no way to only list free files could be a liability. A scheme like this would allow people to market "legitimate download only" clients using the gnutella network. Good idea, no?

---

(Log in to post comments)