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How I Lost the Big One (Legal Affairs)How I Lost the Big One (Legal Affairs)Posted Mar 5, 2004 3:15 UTC (Fri) by jensend (guest, #1385)In reply to: How I Lost the Big One (Legal Affairs) by jdthood Parent article: How I Lost the Big One (Legal Affairs) Good grief. This is a big deal, not just for IP law but for the entire judicial system. Everybody on the court recognized that the practice of continually extending copyright is obviously counter to the provisions of the Constitution (the technicality you mention is obviously irrelevant). However, the majority of the judges decided they didn't bloody well care about the provisions of the constitution. O'Connor's interruption of Lessig amounted to "of course this conflicts with the constitution- SO WHAT?" The refusal of judges to enforce the constitution and laws of the country, enforcing their own ideas instead, threatens every aspect of the American polity, and that this happened in Eldred is something you can agree with even if you are one of the brainwashed who think it's not what happened in "right to privacy" decisions.
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Not a blatant disregard for The Constitution, only a question of holdings vs dicta Posted Mar 5, 2004 12:41 UTC (Fri) by Duncan (guest, #6647) [Link] > O'Connor's interruption of Lessig amounted to "of> course this conflicts with the constitution- SO WHAT?" I wouldn't go that far. Rather, it would seem to me, it's a lessen in "holdings" vs. "dicta", which those of us following the SCO case learned about in Eben Moglen's Harvard speach. The controversy in both the Second Amendment gun argument and here essentually boils down to one of whether certain commentary included in The Constitution should be interpreted as "dicta", therefore holding no legal or precident setting power, or whether instead The Constitution is held to be a concise document so important as to have little or no room for "dicta", thus, every word is effectively "holdings", carrying full legal weight and power. I'm not a legal scholar, and while I'd seen dicta and holdings referenced before and guess I sort of understood them within context, their real importance and the importance of where one draws the line between them, only now is coming into focus, for me. It would seem that The Court basically interpreted the limited times clause as "dicta", explanatory support for the "holdings" set forth, yes, but not on its own holding the power of "holdings". Obviously, folks differ on whether The Constituition even HAS what amounts to "dicta", and even if so, opinions could reasonably differ on whether this is indeed dicta or holdings. For those of the opinion that every word counts, in effect, that there is indeed no room in a document as important and concise as The Constitution for dicta, that it must ALL be "holdings", a view of what happened here may be that The Court, accustomed as it is to interpretting judicial precident and therefore to finding and distinguishing holdings from dicta everywhere they look, wrongly found dicta in a document in which there by definition (according to this held opinion) IS and CAN be none. Oh, well, the court has reversed itself in the past, altho it may take years and serious damage before it does so.. All hope isn't lost yet, tho the damage continues.. Duncan
Or what he said vs what he meant Posted Mar 6, 2004 19:12 UTC (Sat) by giraffedata (subscriber, #1954) [Link] I agree, and perhaps a clearer explanation for people not used to interpreting case law (which is where the holding vs dicta metaphor comes from) is that O'Connor argues, "it's clear the creators of the Constitution didn't intend to give Congress this power. But it's equally clear that they did give it."A thousands of years old principle in our legal system is that a person should be able to read a specific legal code and know what the law is. So it's what the law says, not what it's supposed to say, that matters. Sometimes the specific code doesn't seem to say anything, and then we look at dicta, preambles, and transcripts of the legislature to establish a context in which to give any meaning at all to the words. But where the words are clear, they are all that matter. I'm not saying I buy the argument in this case. "for a limited time" seems like one of those "no meaning at all" terms that requires context to interpret. But I admit that a reasonable person could find that it's quite clear: any time less than forever.
Or what he said vs what he meant Posted Mar 11, 2004 11:42 UTC (Thu) by TheNottledimKid (guest, #57) [Link] > I'm not saying I buy the argument in this case. "for a limited time" seems> like one of those "no meaning at all" terms that requires context to > interpret. But I admit that a reasonable person could find that it's quite > clear: any time less than forever. IANAL but "limited" clearly doesn't extend to forever. That would be "unlimited". Limited means "confined within limits" or "restricted to a few examples". However I accept the effect is the same i.e. "no meaning at all".
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