Sad to say, there are two things that, as a judge, I can’t talk about in public (and this is in public). One is pending cases, which means (in any court, not just mine) cases in which all possibilities of further proceedings, such as an appeal to the Supreme Court, have not yet been exhausted. Oh I can mention a case, e.g., Grokster, which Tim discussed and linked to, or even talk around it a bit, but I can’t comment directly or indirectly on the merits of the decision. I can, though, point you to a case, related to Grokster, that I wrote and that the court in Grokster mentioned in footnote 9 of its opinion: the Aimster case.
And, second, I can’t comment about any current political campaigns, the presidential or any other, or candidate, though I can make a nonpolitical observation about the upcoming election–and as it happens a technological observation. It is to repeat a point I made in my book on Bush v. Gore and the 2000 election fiasco (Breaking the Deadlock is the name of the book): it’s that technological fixes for the sorts of problem that emerged in Florida in the last election, the simplest fix being to replace the punchcard ballot (especially when the votes are counted at the county rather than precinct level) by the optical-scanning (Marksense) system, are likely to be opposed by incumbents. Incumbents have adapted to whatever system they were elected under and are reluctant to take their chances with a new system. This is one example of the uneasy relation between law and technology, and another is the indifference (at least until 2000) of most students of election law to the serious technological issues involved in our election methods.
Likewise my gerrymadnering will stay with us. (It’s actually not too difficult to compose a test as to whether an electoral map is gerrymandered…)
“my” should read “why” on that last comment. Sorry.
I would be interested to hear about what you think about the “perfect storm” of election-related issues summed up in this recent article by Ronnie Dugger in the Nation: “How They Could Steal the Election This Time” http://www.thenation.com/docprint.mhtml?i=20040816&s=dugger
Do you think that voter protection groups are doing enough? Too much?
How about actually breaking down some past decisions for us. You see, there are many people out there (myself included) who simply don’t know how to go about reading that PDF you linked to. We rely on others (the ‘media’ mostly) to tell us what has actually been decided. Do they even talk about the most important points? Who knows? Not me, that’s for sure.
PS: Welcome.
judge posner,
welcome to the jungle.
one of the vines that twists its way around every branch of this forum is the concept of innovation. part of this is due to the US-centic focus of this forum (and that unfortunate preamble in the US constitution), but innovation is also the rhetorical high ground. it is one area where pretty much everyone is in agreement: promoting innovation good, and stifling (or “chilling” to use the preferred language of civil libertarians) innovation bad.
as you are of course well aware, article 1, section 8 of the US constitution limits congressional authority to granting exclusive rights “to promote the progress of science and the useful arts.” (i.e., to promote innovation)
in granting monopolies however it seems to us that the US congress (and courts) must invariably stifle one person’s innovation in order to promote another’s.
many in this forum view congress’ copyright laws as stifling (or chilling) innovation in how the internet and other computer equipment is used. others, such as we three blind mice (electrical engineers all of us), have the broad view that these same laws promote innovation in the creation of content and accept the constraints in internet development and computer use as necessary and beneficial.
the grokster ruling will, for example, promote innovation of content distribution while producing very serious chilling effects on the innovation of some content creators.
since it is carved in the stone of the US constitution, US courts cannot ignore the “promote” clause it, but what would be your view as an outside observer? do you think the promote clause helps, or hurt, the congress in passing rational copyright legislation? does it help, or hurt, the courts in reviewing this legislation?
the three blind mice think the limitation “to promote the progress of science and the useful arts” is something which casts odd and awkward shadows over the copyright debate in the US and is problematic for the rest of the world who are not so constrained.
To Three Blind Mice:
By all means, you should disclose to Judge Posner
where you are from so that he can put your question
in the proper context. I don’t think that he is
aware that you are a foreigner disagreeing with the
basic tenets of copyright (i.e. your inquiry
overlooked the tension between copyright and First
Amendment).
This is not to say that you can’t make any inquiry
here but your inquiry will look odd to those who
do not know your background (i.e. any court will
see your view on limitation on copyright as odd
and awkward very odd).
Joseph Pietro Riolo
<[email protected]>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Judge Posner,
Regarding your views on the 2000 election and your assertion that the incumbents generally resist changes in the way they are elected, I’m curious to know your thoughts on the practicality or viability of completely alternate voting systems, straying from the “one man, one vote” system we have today in favor of systems making use of rankings or approval votes that, in theory, could allow us to more accurately elect people into office.
It seems to me that a change of this magnitude has the potential to pretty much end the duopoly we have today, since a lot of people (like myself) feel we must vote strategically so as to not allow the worst of the two major parties to become elected, possibly disregarding the person we *really* wanted in office. Obviously, this would be at the expense of either of the major parties in power at the time, which suggests it would be heavily resisted no matter who was in charge. Is there any way around this?
Judge Posner,
With the publication of Michelle Malkin’s new book on the Internment, I wonder if you could speak on your 2001 comments in Harper’s about Korematsu being ‘correctly decided’. Are you still of the same opinion and do you feel that the social impact of the case was sufficiently mild to make Korematsu a good decision? How do you consider and try to quantify social impact when you make a decision?
As a person in Fairvote Minnesota, an organization promoting instant run-off voting, I second David Nesting’s query about your views on alternative voting systems.
Judge Posner,
I would like this chance to say what a big fan of your work I am. Your work, among others, has inspired me to pursue law as a career. While not really in the spirit of the professed topic of technology, I was wondering if you could discuss the merits of the Goodridge decision.
Back to the topic of technology. I was going to ask about your feelings about intellectual property (especially the effect of lengthening terms), but I see you are already addressing that. Will comment later.
Judge:
Speaking of lips being sealed, a third area judges don’t discuss, that the appearance the system is working is more important than it actually working, especially when the problem is indigent. Even in the Seventh Circuit where there is a strong libertarian streak, there has been deafening silence on the subject of that court signing off in capital cases on the execution the factually innnocent such as Anthony Porter.
– k
Judge Posner – The aimster opinion that you linked to is a pdf from West. Aren’t their headnotes copyrighted or something like that? Here is the relevant part of their copyright statement from their website:
Believe me, I don’t care. I would love to see some sort of open source access to as many legal opinions as possible. I am addicted to the free law student access to Lexis and West, and am not looking forward to the withdrawl after I graduate. Anyway, wouldn’t it be better to link to a copy of the case that doesn’t include copyrighted material.
What a great example of how easy it is to violate someone’s copyright.