You are getting a bit worked up because you may
not understand the phrase "make
new law." It's a
legal term, and it means asking a judge to adjudicate,
as you
put it, or interpret a statute in a new case,
with new facts, in such a way that
the courts afterward
all go the same way, due to the US being a
caselaw
system.
Courts are pretty much obliged to follow precedent,
you
know. So if a judge rules on a case, if later
cases are similar or identical,
the judges on the new
cases are obliged to follow the precedent, unless
there is
a mighty good reason.
And here's
what David Boies said on the subject in the
Dec. hearing:
On the
other hand, since that time the law has moved, and it is now clear, we think,
that APIs can be protected, and we think that the Sun APIs are protected. That
is a legal question for the Court to decide, that is not a question for the jury
to decide....
But I do know that this is a hotly contested legal issue in
this case that this Court is going to have to rule on and is going to have to
instruct the jury on if we are into the copyright area.
And my only point in
terms of the motion in limine is that this is not something that is appropriate
for the jury. It doesn't go to any -- it doesn't provide relevant evidence that
anything -- that they are supposed to decide.
And it is going to be very
prejudicial to us. And it's going to be very prejudicial to all the parties,
including the Court, because you are going to have a whole series of mini-trials
about what was meant and what was the context here.
I mean, for example,
even in the testimony back in 1994 of Dr. Schmidt, which we don't think is a
relevant issue, but even there what he's talking about, as is clear from the
sentence immediately before and immediately after the section that was read to
the Court, is he's talking about something
called the NII, which is the
National Information Infrastructure which was a proposal at the time.
And at
the end of it, he says, we don't think APIs are copyrightable, but he then goes
on to say that there may be some protection for them under the patent
laws.
And what was happening there is that the law was in flux, it was
uncertain as to what the law was or should be in terms of protection. Should it
be copyright? Should it be patents? Should it be neither?
We believe that
the law has now evolved to the point where it should be copyrightable. And Sun
has copyrighted these things. So when he says the law is in flux,
he doesn't mean new laws being passed. He means new cases are coloring how
everyone sees the statutes that were passed. And he's asking this judge to take
the final leap, as he seems to view it, and lay down a new interpretation in the
9th Circuit that APIs are copyrightable.
And that, to my understanding, is
what you call making new law. Here's a law firm that agrees with me about judges making new law by their
interpretations in rulings in cases. The article they wrote is called Judges
Make New Law Too.
You have insulted me and my guests here quite enough. I
realize you didn't know what the phrase meant. But really, is that any reason to
be insulting? You should apologize, I think. But even if you don't, at least
cut it out going forward. Clearly law isn't your field, and Groklaw is about
the law, so maybe you don't know everything there is to know about it yet? In
such a context, your best shot is to be a little more modest, ask questions,
think before you insult. [ Reply to This | Parent | # ]
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