How Our Robed Masters Also Affect You

The last few days we’ve been having commentary from Thomas Sowell on the need for judges to read the law instead of trying to make the law.

How far things have gotten out of whack is illustrated by

THIS STORY.

It’s an op/ed piece titled "High Court Must Protect Innovators" and has to do with the Grokster case, whereby Grokster is being sued because users of Grokster are trafficking in illegal music and movie downloads.

Unless they’ve got evidence that Grokster is encouraging users to do this (and I don’t know whether or not they do), my sense is that Grokster ought (that’s a moral ought, not a predictive ought) to prevail. If you’ve got a network that has legitimate purposes some or even many are putting to illegal purposes then the preferred remedy would be to go after the people putting it to those purposes rather than the people who established the network.

F’rinstance: People must connect to the Internet in order to illegally download stuff. If any network that is being used by such people is liable for damages then the recording and motion picture industries might as well SUE YOUR INTERNET SERVICE PROVIDER since some people using it are undoubtedly using it for illegal downloads. That logic would shut down the Internet.

Now, I know that someone can argue that a service like Grokster is more proximate to the practice of illegal downloading than your ISP is, but still: If something (e.g., a knife) has a legitimate purpose (cutting food) but also may be put to an illegitimate purpose (stabbing someone), the preferred solution should be to go after the person who is putting it to the illegitimate purpose (the stabber) instead of the person who made it (the knife manufacturer).

You might agree or disagree with me on that, but consider the headline of the editorial I linked: "High Court Must Protect Innovators."

It’s true that if innovators like Grokster aren’t protected then it will cramp technological and (ultimately) economic development, but in what way are Our Robed Masters being asked to protect innovators?

If "protecthing" innovators simply meant reading what’s in the law and applying it because the law says that innovators must be protected, well and good. But if it means creating policies not called for in the law then it’s an appeal to judicial subversion of the democratic process.

Which is the author of the editorial calling for? Consider:

Unless the courts maintain a proper balance between protecting
innovation and discouraging piracy, the steady pace of technology
advancement we have come to expect over the years could be in jeopardy.

So the Court is being asked to strike a balance between competing interests (the need for innovation and technological advancement vs. the needs of intellectual property rights holders).

I’m sorry, but isn’t striking balances between competing interests the business of legislatures rather then courts? We’re talking public policy here, guys. Judges should not be striking public policy balances. That’s what legislators are for. Judges should simply be making determinations of fact concerning whether a particular situation falls within the law that the legislators enacted or not. If it ain’t clear then the legislators should clarify the law. Judges shouldn’t simply make up their own standards to cover sloppy law writing by the legislatures.

The expectation that the editorial writer seems to have that courts should do the work of legislators is deeply troubling, but it’s what both the behavior of the Court in recent years has fostered, as well as what legislators themselves have been doing: The rigor of law-writing in the U.S. has suffered because legislators feel free to throw together a bunch of words that gesture in the direction of what they want to happen because "the courts will sort out" the details.

Author: Jimmy Akin

Jimmy was born in Texas, grew up nominally Protestant, but at age 20 experienced a profound conversion to Christ. Planning on becoming a Protestant seminary professor, he started an intensive study of the Bible. But the more he immersed himself in Scripture the more he found to support the Catholic faith, and in 1992 he entered the Catholic Church. His conversion story, "A Triumph and a Tragedy," is published in Surprised by Truth. Besides being an author, Jimmy is the Senior Apologist at Catholic Answers, a contributing editor to Catholic Answers Magazine, and a weekly guest on "Catholic Answers Live." View all posts by Jimmy Akin