Monday, September 05, 2005

Universal Declaration of American Rights

Derek Slater of the EFF's Deep Links blog is unhappy -- hat tip to Donna Wentwirth -- about "general search warrants" being issued in India to bring the file-sharing crusade to those ruddy-golden shores:
These kinds of warrants are ripe for abuse. That's why they're prohibited in this country under the Fourth Amendment, which was prompted by British abuses of power during colonial times. The MPA has the right to go after those suspected of infringment all around the globe, but it should be ashamed of using tactics that ignore basic civil liberties.

Really? From what I read, since a few years ago India has been a sovereign country with its own laws and constitution, and a democracy as well. For some reason, in its wisdom India decided not to replicate the U.S. Constitution. It's astonishing to me that anyone would suggest that anyone with a legal beef in India should unilaterally adhere to abstract principles of "basic civil liberties," or those enshrined in the constitutions of other countries, as part of its legal strategy. It's also quite a dollop of legal ethnocentrism.

It's really not as complicated as all that, however. Slater simply doesn't like the plaintiff in these cases -- the Motion Pictures Association -- nor its litigation goals. That's what is called "outcome-based" legal argumentation -- I don't like the result so I'll cook up a new pseudo-principle of law to get me an better one. I hope you'll excuse me for assuming that no one is about to suggest, in adherence to this new international legal principle, that "the defendants in the Indian MPA litigation should volunteer to comply with the voluntary disclosure rules of Federal Rule of Civil Procedure 26(e), which was enacted because Congress and the Supreme Court believed there was excessive gamesmanship in the discovery process."

But Ron, there's a difference between the Federal Rules of Civil Procedure and the Fourth Amendment, for heaven's sake!

Not in India there isn't!

Now, there's plenty of real issues to argue about, and I tend to agree that the MPA is going about this all wrong. But fuzzy-headed simulations of legal or constitutional arguments are not going to win the day with anyone.