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| Why would anyone oppose DAISY as being a Specialized Format under Section 121?
Because it is clear IMHO that DAISY does not fit the definition as "exclusively", as in US Copyright Law Section 121 (d)(4) "specialized formats" means -
- Braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities;
Once you start bending the law to your desired result regardless of the language of the law, then, as sure as the sun rises, one day someone else is going to come from behind and bite you on the ass using that same style interpretation against you and say "You can't have it BOTH ways."
In his famous reply (within Chafee related circles) to the New York State Assistant Education Commissioner (2004), Counselor Allan Adler, VP Governmental and Legal Affairs, American association of Publishers (AAP), made the following remark as related to whether a University Disability Services Office can (or as the case would be, cannot) qualify as an 'Authorized Entity' under Section 121 d1:
... the Copyright Act does not distinguish between different categories of well-intentioned and ill-intentioned infringers.
As is again mentioned below, Associate Justice Scalia wrote: “I do not think…the avoidance of unhappy consequences is adequate basis for interpreting a text.”
Regarding the Opinions of Associate Justice Scalia:
FP: And why is the Scalia philosophy “best”?
Ring:
... Scalia’s philosophy, rooted in textualism and originalism, is best able to help our nation preserve the rule of law and avoid rule by lawyers. Former Supreme Court Justice Curtis warned in 1857 that the Constitution would be controlling only if judges interpret it as Scalia advocates. Curtis wrote: “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean.”
Nearly 150 years after Justice Curtis’ warning, we are getting closer and closer to realizing his great fear. Yet, in poll after poll, a majority of the American people consistently says it wants judges to interpret the law as written, not make new law.
FP: What is the judicial philosophy that moulds Scalia's decision-making?
Ring: Justice Scalia’s philosophy for deciding cases is straightforward and easy to understand. It incorporates two important –isms: textualism and originalism. As its name suggests, textualism directs judges to focus on the text of the law to decide disputes. This might seem obvious, but all too often judges seem willing to substitute their sense of the “fair” or “just” or “right” result for that which would otherwise flow from a proper interpretation of the actual law. Scalia is willing to apply the text even if the outcome it produces is not one he supports. As he once wrote, “I do not think…the avoidance of unhappy consequences is adequate basis for interpreting a text.”
Note: NIXON V. MISSOURI MUNICIPAL LEAGUE (02-1238) 541 U.S. 125 (2004) Concurring Opinion
As part of his textualist approach, Scalia argues that the words of a text should not be interpreted “strictly” (as some conservatives advocate) or “liberally.” Rather, they should be interpreted reasonably and given their ordinary meaning. When in doubt, Scalia believes words should be given the meaning that would have made the most sense to the Framers (if dealing with constitutional text), the Congress, or the state legislature that passed the law and to the people who would have been subjected to it. This adherence to original meaning is known as originalism.
courtesy:
Scalia Dissents By: Jamie Glazov
FrontPageMagazine.com | Wednesday, December 01, 2004The following excerpted from EASTERN ASSOCIATED COAL CORPORATION,
PETITIONER v. UNITED MINE WORKERS
OF AMERICA, DISTRICT 17 et al. on writ of certiorari to the united states court of
appeals for the fourth circuit [November 28, 2000]
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. ... The problem with judicial intuition of a public policy that goes beyond the actual prohibitions of the law is that there is no way of knowing whether the apparent gaps in the law are intentional or inadvertent. The final form of a statute or regulation, especially in the regulated fields where the public policy doctrine is likely to rear its head, is often the result of compromise among various interest groups, resulting in a decision to go so far and no farther... | |
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