Christopher E. Babbitt, a student at Harvard Law, writes in The New Republic Online that rather than pass new legislation (like the Digital Millenium Copyright Act), the legislative branches of government should simply allow the courts to decide how to regulate new technologies, setting precedents by drawing appropriate analogies from more established fields. This is a popular stance in certain technological-activist circles; at the academic conference where the famous SDMI-hacking paper was presented (the one the Recording Industry Association of America apparently attempted to suppress by means of a nasty "lawyer letter"), an invited panel of attorneys argued vehemently that copyright infringement should be handled by judges on a case-by-case basis, in the hope that (and this is, I believe, a fair representation of what was said) well-intentioned people--say, journalists violating copyright in order to reveal corporate malfeasance--could be granted a "fair use" exemption denied to, say, for-profit music pirates.

Now, I'm no fan of DMCA, and I certainly don't approve of criminalizing the publication of information about security vulnerabilities in computer systems. But if anything could make me sympathetic towards what is, after all, a democratically enacted piece of legislation, it would be the threat of intellectual property protection falling--like so many other governmental functions--under the dictatorial control of (former) Harvard Law students. What Babbitt and colleagues are effectively proposing is that any given instance of a common, everyday activity like quoting copyrighted material be considered either legal or illegal, depending solely on whether or not a judge, upon staring deeply into the eyes of the plaintiff and defendant, decides he takes enough of a shine to the latter to apply the "fair" in "fair use" to the case at hand. The legislators who control the DMCA may (or may not) be in the pockets of corporate lobbyists, raving rednecks, whining interest groups, or other sorts who dare to interfere with the basic right of Harvard Law graduates to run the country, but they can at least be voted out of office if their particular tastes in content duplication are flaky enough. There's still something to be said for democracy--however unpopular it may be in the nation's law schools.