Bad lawyering here: as an advocate, it is good to assert every valid legal position that makes sense for a case but it is always bad to cast your client's position in a light that holds it up to ridicule and mockery. When that happens, any valid claim that might exist gets caught in the downdraft caused by your bad judgment and the whole case is compromised.
I feel for the judges trying to apply 1976 statutory law to modern technology. The 1976 revamp of the Copyright Act was the last comprehensive one and its major purpose was to account for the effect (since the enactment of the 1909 Act then in effect) of motion pictures, sound recordings, radio and other then-modern forms of communication on IP laws. Common law is made by judges case-by-case and it is by nature slow and evolving, as is a parallel type of judge-made law based on case-by-case interpretation of old statutes. It is precisely the vacuum left by this case-by-case handling of an antiquated set of statutes that creates the problems today. What is needed is a comprehensive statutory enactment by Congress to bring these laws up to date and to make them fair. Even if that means keeping copyright under the rubric of "property" and defining wrongs in that area as "thefts," this can still be done fairly by defining sensible penalties that are commensurate with the scope of any wrong committed.
Of course, to do this, you need Congress to break free from the grip of lobbyists whose influence would inevitably distort the amending process. Good luck with that.
I feel for the judges trying to apply 1976 statutory law to modern technology. The 1976 revamp of the Copyright Act was the last comprehensive one and its major purpose was to account for the effect (since the enactment of the 1909 Act then in effect) of motion pictures, sound recordings, radio and other then-modern forms of communication on IP laws. Common law is made by judges case-by-case and it is by nature slow and evolving, as is a parallel type of judge-made law based on case-by-case interpretation of old statutes. It is precisely the vacuum left by this case-by-case handling of an antiquated set of statutes that creates the problems today. What is needed is a comprehensive statutory enactment by Congress to bring these laws up to date and to make them fair. Even if that means keeping copyright under the rubric of "property" and defining wrongs in that area as "thefts," this can still be done fairly by defining sensible penalties that are commensurate with the scope of any wrong committed.
Of course, to do this, you need Congress to break free from the grip of lobbyists whose influence would inevitably distort the amending process. Good luck with that.