Legal Research

Mired in Minutia

By David Canton

Simon Fodden noted in a post a couple of days ago that a couple of copyright commenters have stopped commenting because ?the current state of copyright law is truly depressing?, or ? ?corruption? of the political process?.

IMHO, one of the problems with the current state of copyright law is that legislators, lobbyists, interest groups and lawyers are for the most part all so bogged down in the details that they fail to see the big picture and fail to go back to the fundamentals to think things through.

As lawyers we are (or at least we should be) good at dealing with details. But lawyers and legislators need to remember that the details are just a subset of a bigger picture. Without that 40,000 foot level context to fit them in, the details can easily lead us astray. It?s easy to get so mired in the minutia that we derail, delay or compromise the bigger goal of the exercise.

It?s always worth taking some time to step back and think about fundamental goals or basic principles, even if they seem obvious.

This is true for many things, including legislation, contract discussions, and settlement negotiations.

So for copyright in particular, legislators need to first take a step back, and consider why it exists in the first place. Also consider the modern and potential future marketplace and technology. If, for example, some copying is beneficial or harmless to the copyright holder, how draconian does the legislation really need to be?

While the answers to those fundamental issues themselves are not without controversy, it at least makes it a lot easier to think through the positions of the various points of view and lobby groups.

Full post as published by Slaw.ca on August 06, 2008 (boomark / email).