> and then we expect the judge to "save" us from the broken law instead of holding the legislators accountable
Why can't it be both? All this does is keep us busy looking where the 'root cause' is and never actually solve anything because the mechanisms to fix those things don't exist... all the while others reap its benefits.
If the Internet Archive's digitizing and distribution of old books is fair use then so is a video game ROM site that distributes digital images of pre-PS360 era games that are no longer available to purchase legally. except at exorbitant rates on eBay. And there's also a strong case for the original Napster being fair use if IA is.
I don't think there was ever any serious doubt that the Internet Archive would lose their case as they are clearly in violation of copyright law. The issue in the case is that the copyright laws are bad laws that have become contrary to their purpose of "promoting the useful arts and sciences" due to the copyright terms being absurdly long (and the lack of any serious deterrent to fraudulent DMCA claims which has allowed for the proliferation of such claims as a censorship and/or doxxing technique) and need to be reformed. It was unwise for the Internet Archive to violate copyright law just as it was unwise for Bowser the ROM site owner[0] to violate copyright law because flagrantly violating copyright law is an effective way to get yourself bankrupted via lawsuits and an ineffective way to get bad intellectual property laws changed.
If the ROMs are out of print then they should fall into the public domain.
One much needed copyright law adjustment would be to limit copyright protection to a period where the work is actually commercially viable meaning the owner is making an effort to sell it. It doesn't benefit anybody to have old works locked up for years and years with no way for the public to acquire them legally.
Libraries and archives have very little in the way of special rights when it comes to digital distribution of copyrighted works even if they have certain backup/preservation rights.
Judges are there to enforce the law, not to make it. You can't hope that the judge takes your side because then the judge could just as easily take the other side. There is of course an element of interpretation which the judges can use to decide in different directions over the same thing, but that again is an example of a broken law.
> Judges are there to enforce the law, not to make it.
That's not the right characterization of the argument. Judges are there to tell legislators that they can't make certain laws. The abortion dispute is not about judges making abortion legal, it's about judges telling politicians that they cannot make abortion illegal. Without that, politicians would literally have the ability to do anything they want.
I find it both shocking and terrifying that people lack the most fundamental understanding of how a properly separated government system would work, let alone why it should function that way.
It should concern everyone that these types of top down authoritarian mentalities are more prevalent as people without a tradition or culture based in western philosophy that has led to what used to be a clear separation of powers, become more prominent even all over the western/European based world.
It will not end well for most of humanity, even in this community, regardless if how much we believe ourselves to be doing good here, or at least not even considering the destabilizing consequences of what we do here.
> authoritarian mentalities are more prevalent as people without a tradition or culture based in western philosophy
I think you are wrong here. We, the people with “lived experience” in authoritarian countries, look with astonishment at how the American people dismantle the basics of their own political system “based in western philosophy”.
You know, Stalin’s constitution of 1936 was one of the most liberal and progressive at the time. Then 1937 came. So the suggestion that judges should stop looking at the code of law and just eagerly follow the Party line - produce cries of “danger” from my very own carbon-based neural network.
So my estimate is quite opposite - the “native” Americans took the benefits of the political system based on western philosophy so much for granted, that they’ve stopped thinking where these benefits were coming from.
>It should concern everyone that these types of top down authoritarian mentalities are more prevalent as people without a tradition or culture based in western philosophy that has led to what used to be a clear separation of powers, become more prominent even all over the western/European based world.
Do tell, what people specifically are you referring to?
But the judges should only overrule legislators when their laws violated higher level legislative authority or constitutions, right? Do you think a judge should be able to legislate what the law is independent of elected officials? Why would you trust them, especially since they are appointed by politicians or elected themselves?
...There's a reason the judiciary scared the bajeezus out of Thomas Jefferson.
Look at how the 2nd Amendment basically does not exist for some of the most populous states because SCOTUS refuses to reign in the more egregious examples of judicial/legislative reacharound like Wickett v. Filburn, or the vast majority of firearms legislation in places like NY and California.
Roe v. Wade is a shining example of how legalism can get turned on it's head just by changing out the authoritative judge who has the last word, or a new case coming up and being heard that threatens a change in viewpoint of SCOTUS.
The Writ of Certiorari is in my opinion the most overpowered political lever in the entire U.S. in the negative sense in that it's not being granted robs millions of an opportunity for redress of real harms, and in a positive sense in that when it is granted it can completely alter the judicial landscape for decades without legislative action.
I assume you are coming from the standpoint of the judges working out if a law is unconstitutional. My country, the UK, does not have a written constitution, so this kind of thing doesn't come up as often. However, a constitution is still just a bunch of legal principles, set by government. The judges are still making rulings based on a set of rules. If the rules need changing then the people should elect the right people to change them.
Judges do NOT legislate from the bench! That is incredibly anti-democratic, and a collapse of our system. Judges do NOT tell politicians that they cannot make abortion illegal. That right, and yes, it IS a right, is reserved to the electorate. Who gets their will expressed through politicians. Judges judge against the body of legislation (and common law). And, yes politicians LITERALLY have the ability to do anything that the electorate want. That includes Global War.
We have rights as individuals, which can’t be infringed by laws. The courts are there to prevent those laws. It’s what abortion and 2nd amendment lawsuits are all about.
These right declarations aren’t super clear so the political leanings of the court weight heavily.
You assume "rights" exist in a vacuum. The so called "rights" given to "the people" are clearly defined in the constitution and the bill of rights. Judges compare laws to those documents for conflicts, and err on the side of the constitution and the bill of rights. They do not make rights up as they please.
> The so called "rights" given to "the people" are clearly defined in the constitution and the bill of rights.
9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people
10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
What is clearly defined by the Constitution is that the set of rights claimed by the people is unbounded and explicitly not limited to what is enumerated in the Constitution and Bill of Rights - those rights are assumed to exist 'in a vaccum' in that they are declared to be "inalienable" and "endowed by the Creator," irrespective of one's personal belief in the validity of claims of divine sovereignty.
The Constitution does not define rights, rather it defines the limits of the government's power to abridge those rights.
Nitpick:
>To get pedantic, the executive is there to enforce (and decide how to enforce) the law.
The Executive is there to implement an enforcement mechanism, even if the decision os to implement a null mechanism.
The executive cannot (or normatively should not ex nihilo) just materialize enforcement infrastructure without Congressional approval. The existence of Administrative law, however, rather shopts down the original intent of the Founders in terms of Governmental architecture.
Why can't it be both? All this does is keep us busy looking where the 'root cause' is and never actually solve anything because the mechanisms to fix those things don't exist... all the while others reap its benefits.