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Juries or judges, who should decide copyright and DMCA cases

Like him or hate him Thomas Jefferson said and did some amazing things. I think his insight in the way things might go in the future was at times amazing. One of my favorites is about the judiciary.

He said
“I consider Trial by Jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution".

Another couple of quotes and points by Jefferson concerning the bias of judges in cases and the law itself:

"It is left... to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:423, Papers 15:283

"The following [addition to the Bill of Rights] would have pleased me:... All facts put in issue before any judicature shall be tried by jury except, 1, in cases of admiralty jurisdiction wherein a foreigner shall be interested; 2, in cases cognizable before a court martial concerning only the regular officers and soldiers of the United States or members of the militia in actual service in time of war or insurrection; and, 3, in impeachments allowed by the Constitution." --Thomas Jefferson James Madison, 1789.

"[The people] are not qualified to judge questions of law, but they are very capable of judging question of fact. In the form of juries, therefore, they determine all controverted matters of fact, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283

The common sense of our founding fathers has been removed by our system and the people who set the standards. Letting lawyers and judges be in charge of how the rules work was and is a horrible mistake. Our founding fathers knew that as out of the 55 delegates only 35 were attorneys or had any legal training. Only a very few were wealthy. They had businesses, farms and other careers. Many had two occupations to make ends meet. In other words, they were the common man. Most were well educated but to survive in the time they were working in they had to have a large dose of common sense. In my opinion that is missing in our government and especially in the judiciary branch today.

I think the real issue that comes up in these cases is that many in the judiciary have lost the will and maybe the ability to represent the small guys in federal cases. They think they should be more concerned with large cases and keeping the docket clean. I do realize the case load is very heavy but many times it is just the same thing over and over. Take copyright infringement as an example, summary judgments are supposed to be the last resort. Judges now are instructed to use it first if they can. It should be used only under certain situations according to the rules and the Supreme Court. Even Chief Justice Roberts argued for trials instead of summary judgments. Now he is the one pushing to use them. If the infringing parties are held accountable for using work they never paid to use things would be much different. The case load would drop and families of the artists would not have suffer or pay huge fees to attorneys. While I agree there needs to be oversight but it should not be lawyers and judges. Our federal judges can be paid in a way that the normal person sees as under the table. They are employees of the federal government and should be restricted in many ways that currently they are not.

“What many of those who oppose the use of juries in civil trials seem to ignore is that the founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.”

Chief Justice William Rehnquist – Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979)

There are many people out in the general public who have had their work taken, who have filed suits and been told to go away by judges alone. That is just plain wrong in most cases. I am not a fan of summary judgements. The photographers have it much easier in most cases as it is a stationary item. It is a moment in time not a novel, song or screenplay subject to interpretation.

I urge photographers to read more about copyright infringement and take action. I read in forums where it is just too time consuming and to expensive to deal with now. That is the reason you are losing so much business. They know you are not going to do anything about it. Take up the cause if nothing more than supporting the ones who are working to protect all of our rights. Support non photographers as well. It will be hard, it will be lonely and the rejection by overpriced and self interest attorneys will be very high. It is time to make the stands that have to be made so we can keep our work, our income and our dignity.

Some people who are also dealing with this are Carla Boone and the people on her DVD, Injustice for all, Summary Judgment. I wrote an article about it here. There is a very nice piece written by Steven Lowe called “The Death of Copyright”, he also has written a sequel to it. They can be see here and here. It is very important that we take a stand and help these people as well as ourselves.

I do realize how hard it is to make a living as a photographer anymore with all the people giving away their work and with the raiders taking it and using it for free. We cannot stop all of it but we can slow it down if we work at it and stand up for our work and ourselves.

These are my personal opinions and should be viewed as that alone. I promised I would keep you informed of the cases I have and of others to show the business side of the photography world and I am writing articles like this to fulfill my promise.

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