[school-discuss] Microsoft, FUD, &c

[Joel Kahn <jj2kk4@xxxxxxxxx>]

Since we're busy discussing the Orwellian & Kafkaesque
nightmare called intellectual property, this seems
like a good time to toss in one of my favorite
passages from a US Supreme Court majority opinion. For
the benefit of legal scholars: these words come from
the 1926 ruling Connally v. General Construction Co.,
269 U.S. 385.

"The terms of a penal statute . . . must be
sufficiently explicit to inform those who are subject
to it what conduct on their part will render them
liable to its penalties. . . . A statute which either
forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application
violates the first essential of due process of law. .
. . The dividing line between what is lawful and
unlawful cannot be left to conjecture. The citizen
cannot be held to answer charges based upon penal
statutes whose mandates are so uncertain that they
will reasonably admit of different constructions. A
criminal statute cannot rest upon an uncertain
foundation. The crime, and the elements constituting
it, must be so clearly expressed that the ordinary
person can intelligently choose, in advance, what
course it is lawful for him to pursue. Penal statutes
prohibiting the doing of certain things, and providing
a punishment for their violation, should not admit of
such a double meaning that the citizen may act upon
the one conception of its requirements and the courts
upon another."

The original Connally case was not about IP, and the
subject is specifically criminal law rather than
civil; still, it seems to me that civil law should be
covered by the same basic principle, and that the
current state of IP (especially copyrights and
patents) could benefit by a close comparison between
the present wording of the law and the quotation
above.

The basic idea is that no statute should lend itself
to making FUD easier to create. If IP really lived up
to this, would Microsoft even be able to survive?

Should we ask Lawrence Lessig for some input? :-)

Joel



 
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