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.
