Monday, December 7, 2009

Separation Of Powers Is More Interesting Than Charles Nesson*

Adam Gaffin at Universal Hub points us to Judge Gertner's decision today in what will probably be come to known as the Charles Nesson file-sharing case (but for now is just Sony BMG Music Entertainment v. Tenenbaum, D. Mass. No. 07-CV-11446-NG). There's all manner of juiciness in the discussion of Professor Nesson's performance as trial counsel.**

But it's a good indication of the magnitude of my nerditude that I found the following graph on page 35 of the opinion to be way more interesting:
As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges – no implores -- Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage. “Repeatedly, as new developments have occurred in this country, it has been Congress that has fashioned the new rules that new technology made necessary.” Sony, 464 U.S. at 430-31. It is a responsibility that Congress should not take lightly in the face of this litigation and the thousands of suits like it.
I'm really not all that sure how I feel about Article III judges telling Article I legislators what to do. Though not a huge believer that judicial activism poses a danger to the Republic, I do suppose it's not that far of a leap from telling Congress to change a statute in an opinion to just going ahead and invalidating it yourself. Which, by the way, is the right thing to do if the statute offends core constitutional principles. At least until Marbury v. Madison gets flipped.***

*He might agree with that, by the way.

**Prof. Nesson seems to have represented Judge Gertner before the First Circuit in 1984. See In re Grand Jury Matters, 751 F.2d 13 (1st Cir. 1984). Slightly awkward, no?

***You chuckle, but it could happen. You know it could.


adamg said...

IANAL, so apologies if I'm getting this wrong, but is it that uncommon for judges to basically say "I have no choice but to rule this way because that's the way the law is written?" Gertner is perhaps a bit more explicit than other judges, but unusually so?

And welcome back to blogging!

Terry Klein said...

Thanks, Adam!

My sense is that every now and then a judge will say something to the effect of "my hands are tied". It's pretty rare, though, for a judge to follow that by saying "and I am asking Congress to untie them". I'd attribute this to the widely held, and probably correct, perception that a judge's function is to make a decision based on the law as it exists. Asking the legislature to change a bad law doesn't neatly fit within that function.

The Andover Snark said...

Good for Judge Gertner, who could have played games but did not. I don't mind judges asking for changes to the law -- I mind judges changing the law themselves just because they happen to disagree. And welcome back! You've been missed.