1.Evaluate the views of the Critical Legal Studies School of jurisprudence. What are the benefits and drawbacks of using broad notions of fairness in deciding cases?
The theory of Critical Legal Studies removes the common held standards and aspects of general legal practices and looks to establish a more rounded and equitable remedy in all concerned situations. It is perceived that the law and its makers look only to protect the interests of those that are in power and that of the overwhelming social demographic whom create the modern day structure of beliefs, prejudices and sanctions that are implemented as laws.
Fairness, however, in the constant and endless legal domain would be found at the cost of the consistency that is offered by precedent. The notion that a professional decision came about after much debate and thought allows for a certainty in future decisions holding the same characteristics, this is a flawed logic when precedent becomes outdated or the decision previously held is in fact incorrect. This understanding can also be countered with the idea that each and every decision that comes before the courts may be decided with greater flexibility and each situation judged on its own individual details, flaws and merits. The cost and time constraints of this style of law reform would make proceedings long and arduous, clogging the legal system with potentially smaller straightforward cases with no room for fast tracking the precedent that was set in previous judgments.
CLS believe that law, in practice and in general, is simply politics. Legal mindsets are created with the introduction of new governments or departments and this way of thinking filters into what is common law by the judgments reached by the judiciary and via one-sided legislation being passed. By allowing free thinking decisions to be considered at the point of judgment law and politics would be separated, without influence or instruction, and the simple facts would bear the onus of outcome.
This separation from precedent and flexibility could have repercussions however if judges failed to use their discretion in a proper manner and could also introduce legitimate doubt regarding underhand tactics or bribery to influence decisions where no framework is associated. The principles of CLS are founded on the ability to allow a social, gender, class, race and other characteristics an equal balance in the eyes of the law and in the decision making of the law makers. To allow people to be judged on their circumstances of the case rather than that of the social structure surrounding them would enable a “freedom” of sorts and remove limitations of choice imposed on them by circumstance of life.
2.What changes should be made to copyright law to reflect the ease with which much creative material can be reproduced and distributed over the Internet? What concerns are there with any such law?
The internet, in this area of law, has changed everything prior to its conception. All previous technological advancements in the creative arts regarding sound quality, playback and recording devices and broadcasting capabilities did not warrant any changes to the dated but resilient copyright laws already in place. The significant change that required an immediate reworking of the details held within copyrights governance was the fluid ability in which the listener could record and broadcast creative material that was being watched or listened to. The internet didn’t create this problem however, but it was the revolutionary way in which communication changed that raised the concerns and awareness of a now prevalent problem which is strongly featured in the music and film industry. The ability to see, listen and share material with people previously, potentially unreachable assisted in making the world dynamically smaller. The ease of listening and purchasing is now almost one and the same.
Therefore changes in the law surrounding copyright and protection of the rights and intellectual property of artists are, and will be for some time yet, difficult to track and administer. The concerns arising from any changes would be that the creative material may need to be suppressed, maybe in the form of scrambling, hence making it more difficult for the less established, and smaller artist to expose their work to the world. Alternatively ignorance of the law and any changes made would continue to see artists being exploited and not receiving the funds/recognition that would come with a secure and restructured performance rights act.
The key area in the present public domain is that of file sharing. The issue of downloading and the greater offence of uploading copyrighted material on peer-to-peer networks and forums without the permission of the copyright holder immediately takes away any royalties payments for the artist that would have been derived if the users would have purchased the work through legitimate channels.
In recent years crackdowns on sharing sites their servers and users have resulted in settlements being made for the artists and copyright holders affected by this but other than implementing greater punishments and sanctions to deter this form of piracy it would seem that the expanded use and ease of access that the internet continues to generate will result in this problem be a constant issue for the industries concerned. Greater flexibility within the act with regard to sentencing may invoke a moral change or fear in some but the faceless aspect of what many do not see as a crime will be difficult to target using legislation alone.