Checks and Balances

Thomas Jefferson is rolling over in his grave.

An otherwise interesting BBC article on the Google book scanning deal ends with this:

Many believe the issue of rights over out-of-print books would best be solved by legislation and not the courts.

“It is never a good thing for private parties to make deals for the public good,” said Martin Manley, the founder of, an online store which sells used, rare and out-of-print books.

“The public good is meant to be solved by regulators who are somewhat accountable and by legislators who are wholly accountable,” Mr Manley told BBC News.

Now, I’m not a big fan of copy right law and I support Google in their efforts, but Mr. Manley has this completely wrong. The enforcement of private contracts is certainly within the realm of the judicial system. Google is not trying, nor should be expected to, make deals for the “public good.”  They are simply trying to provide a service that consumers find desirable – and working around stone age copyright law in trying to do so. But don’t think for a second that just because Google doesn’t charge internet users directly for their services that Google is acting for the purposes of the “public good.”

Make no mistake, this is a private deal for private interests.

And as for his second quote… yes, copyright law needs to be reworked by legislatures, but it doesn’t sound like this is what he’s saying. It sounds like Manley wants congress to pass some bill that would erase private contracts and copyrights to “protect the public good” of having free books online (which, incidentally, I don’t think one of the rights protected by the constitution).

I hope this quote was taken out of context. Imagine what kind of precedent it would set if congressman could just erase copyrights or patents when deemed to violate the “public good”? Manley claims that legislators are more accountable that judges, but was it judges that were trying to interfere with private contracts during the financial bailouts?

What Manley is suggesting, using erroneous assumptions, is that judges are trying to legislate from the bench via private interests (which is false, they’re just trying to uphold bad laws) in a way which violates the public good (also false: he confuses Google and google customers for the general public). His claimed solution, if I’ve interpreted correctly: give legislators even more power to uphold subjective public good.

Hint – what legislators claim is the public good is more often than not special deals for private interests. In this case, what Manley wants is a deal that works out for Google. What happens when the next special deal is struck for some pharmaceutical company that Manley doesn’t like so much?

There is a good reason why we have checks and balances and that political power is divided the way it is. I would say this recommendation is borderline unconstitutional.

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