Back this summer, when Judge Marilyn Patel of the United States District Court for the Northern District of California issued the infamous injunction that threatened to close Napster for a few days, I though the name seemed a bit familiar. As well it should have: Patel also issued the 1997 ruling (in Bernstein vs. United States Department of State) voiding the export rules on strong cryptography. That is to say, whether or not Patel was right or wrong in the Napster case, her paper trail shows that's she's no doody-head in matters technical. She can and has recognized the expressive content of code; she can and has ruled against trying to legislate the impossible. All of which, I must say, does not bode well for Napster: when it comes to undermining her own rulings, Judge Patel is no Judge Jackson. When a known friend of the little guy sides against you, the pressroom argument that the ruling is part of the clueless Old System in operation loses some of its force.
How big a friend of the little guy is she? Well, put it this way. Back in 1983, Patel overturned Fred Korematsu's 1942 felony conviction for defying the relocation order sending Japanese-Americans into internment camps. When the case reached Patel, the government was in agreement with Korematsu's lawyers that the conviction should be set aside and the case declared moot, given that the relocation laws had been repealed. Patel would have none of it, and she used the case before her to look into the relocation laws themselves. Through hearings and an examination of the evidentiary record, she made publicly clear that no military necessity justified the relocation, that the military officials responsible for the relocation knew it to be unnecessary, and that they concealed this knowledge from the Supreme Court at the time of Korematsu's original appeal in 1944. Patel's ruling was a key step in the process that ultimately led to reparations for the surviving internees.
(Much of this information was taken from Martha Minow's Between Vengeance and Forgiveness, a thought-provoker of a book if ever there was one).