Friday, August 30, 2002

BT loses hypertext claim revisited A while ago I wrote how I was ambivelent about BT losing its hyperlink patent case. On the one hand it was a ridiculous patent, but on the other hand we have a ridiculous patent law and how better to point out its sillyness than by following it. But my school buddy SS (now at Yale Law School) responds:
Must disagree with they way you put your point on the BT hyperlink patent issue, if not necessarily with the deeper point itself. Whether a bad law stays "on the books" is totally irrelevant to what the law is. (American) Lawyers spend much more time worrying about what intervening judicial decisions say than what the base statute says; a judge can and does change the law just as much by a narrow construction of a statute than by striking down the statute and getting the (wholly owned by Disney/AOL) legislature to redraft it. Much better, usually, to keep Congress out of it and let the judges fix the problem with doctrine. It makes the law harder to find--it's not just in one tidy place on the web--but that's the common law for you.
Point taken. Congress, wholly owned, clueless, and utterly irresponsible, does routinely draft terrible laws, but I'm not thrilled by leaving it up to the Judiciary either. Judges may not be owned, but they often don't know much about technology and can make bad decisions too. Moreover, leaving "actual law" down to (future) case law means property rights remain murky, which is economically wasteful and retards innovation. In the matter of software patents, these just need to be banned as a class, which isn't something I think case law can do.

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