Terrible News: Court Says It's Okay To Remove Content From The Public Domain And Put It Back Under Copyright

from the awful-ruling dept

Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The "Golan" case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright? The situation came about because of (yet another) trade agreement that pulled certain foreign works out of the public domain. A district court had initially said that this move did not violate the law, but the appeals court sent it back, saying that the lower court had not analyzed the First Amendment issue, and whether this was a case where the inherent conflict between the First Amendment and copyright law went too far to the side of copyright by violating the "traditional contours of copyright law." Getting a second crack at this, the district court got it right -- and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.

But, of course, it couldn't last.

On Monday, the appeals court reversed the lower court's ruling and said there's no problem with the First Amendment because copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense. The whole point of the First Amendment was to protect citizens' interests against situations where the government's interests went against citizens' interests. It should never make sense to judge a First Amendment claim on whether the government has "substantial or important" interests.

On top of that, the court basically said "Congress knows best" on this issue. Again, this seems to go against the entire point of the First Amendment and the important judicial protections of the First Amendment. The whole point of court oversight of Congress is because Congress doesn't always know best. But here, the court has no problem deferring entirely to Congress:
This deferential standard is warranted for two important reasons. First, Congress is "far better equipped" as an institution "to amass and evaluate the vast amounts of data bearing upon the legislative questions." ... Second, we owe Congress "an additional measure of deference out of respect for its authority to exercise the legislative power."
Except, as has been shown time and time again on copyright issues, Congress has done a terrible job amassing any data to support its continued and unstoppable expansion of copyright law. Just within the past few months we've seen the GAO -- which is supposed to make sure that Congress is properly applying data -- admit that Congress is flat out ignoring the actual evidence and agreeing with bogus studies from a few industries that is not backed up with any actual evidence.

Most worrying of all? The court says that it should keep out of this discussion because it involves international relations and international treaties. See why you should be scared to death of ACTA? The courts are effectively admitting that once you get these "international obligations" in place, the courts should mostly stay out of the discussion, even if it violates the basic tenets of US law. That's downright scary. The court gives a lip service defense to this, saying that it can still review international agreements to make sure they abide by the First Amendment... but... for the most part, it'll just defer to Congress.

Next up? The court actually relies on testimony about "losses" from an RIAA official as well as someone from the IIPA (a lobbying group made up of the RIAA, MPAA and other similar organizations):
In particular, American works were unprotected in several foreign countries, to the detriment of the United States' interests.... statement of Jason S. Berman, Chairman and CEO of the Recording Industry Association of America... :"[T]here are vastly more US works currently unprotected in foreign markets than foreign ones here, and the economic consequences of [granting retroactive copyright protection] are dramatically in favor of US industries.").... By some estimates, billions of dollars were being lost each year because foreign countries were not providing copyright protections to American works that were in the public domain abroad.... (statement of Eric Smith, Executive Director and General Counsel of the International Intellectual Property Alliance) ("Literally billions of dollars have been and will be lost every year by U.S. authors, producers and publishers because of the failure of many of our trading partners to protect U.S. works which were created prior to the date the U.S. established copyright relations with that country, or, for other reasons, these works have fallen prematurely out of copyright in that country.").
These are the same studies that the GAO -- whose actual job it is to analyze these reports -- dismissed as junk science. This is exactly where the courts should step in and note that Congress is not doing its job and is doing serious harm at the behest of a few small industry interests. What a travesty that this court couldn't see that.

And, of course, the court continues to rely on clearly biased individuals who had a clear agenda, rather than a factual basis for their positions. It even quotes Jack Valenti's ridiculous claim that if the US removed foreign works from the public domain, that suddenly China and Russia would start respecting US copyright.

Also incredibly frustrating, misleading and inaccurate is a small footnote, which asserts the commonly claimed excuses by the courts for why copyright law does not violate the First Amendment: that the "idea/expression dichotomy" and "fair use" make it so there is no conflict. But what's frustrating in this footnote is that this particular court seems to suggest that so long as copyright doesn't mess with those two things then there's no First Amendment issue with copyright.
We note that copyright includes several "built-in" First Amendment protections.... The idea/expression dichotomy ensures that only particular expressions, and not ideas themselves, are subject to copyright protection.... Additionally, the fair use defense allows individuals to use expressions contained in a copyrighted work under certain circumstances, including "criticism, comment, news reporting, teaching . . . scholarship, or research . . . and even for parody." ... Section 514 does not disturb these traditional, built-in protections, and thus, such protected speech remains unburdened.
But that's wrong. Dangerously, ridiculously and constitutionally questionably wrong. Just because there are those two "valves" to hopefully keep copyright law from violating the First Amendment (and there are some very, very serious questions about how well either of them actually work), it does not mean that those are the only places where copyright law must be judged under the First Amendment.

In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain. If you have any respect at all for the core notion of copyright -- which was originally supposed to be about getting more works into the public domain -- the idea that you can then take works back out of the public domain is downright ludicrous. It goes beyond being a violation of the basic contours of copyright law. It goes against the very Constitutional principles behind copyright law -- and does so in a way that is a clear violation of the First Amendment.

Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?

All in all this is an incredibly frustrating ruling. It feels like the court didn't actually want to address the admittedly difficult question of how the First Amendment and copyright law come into conflict, so it just punted and said "well Congress knows best, so it's okay." The case will almost certainly be appealed, potentially for an en banc (full appeals court review) or directly to the Supreme Court. So this most certainly is not over yet. But after a reasonable ruling last year to this year's reversal, it's definitely a step backwards for anyone who believes in the importance and sanctity of the public domain.

If you want to be frustrated, read the full decision below:


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Rose M. Welch (profile), Jun 22nd, 2010 @ 6:29am

    So what happens if...

    ...you use or publish something in the public domain that's later pulled back? Can you continue to sell copies that you still have? Can you continue to progress with your work that uses that art? Are you suddenly a 'thief'?

    This blows.

     

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      interval (profile), Jun 22nd, 2010 @ 10:52am

      Re: So what happens if...

      I don't get it. So I can arbitrarily slap a copyright on, say, Plato's Republic? That's insane.

       

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      King Reggin, Jun 22nd, 2010 @ 2:43pm

      Re: So what happens if...

      This site should be shut down by the US government for promoting anticopyright views. You're as bad as Obama, who should be shot for treason.

       

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        Anonymous Coward, Jun 23rd, 2010 @ 4:06am

        Re: Re: So what happens if...

        "...Obama, who should be shot for treason."

        Didn't the FBI hunt down and kill the last person who stated this on the internet?

         

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        Technopolitical (profile), Jun 23rd, 2010 @ 4:08am

        Re: Re: So what happens if...You're as bad as Obama, ,,,,,,,,,,,,,,,

        I think the Secret Service will be calling on you.

         

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        BearGriz72 (profile), Jun 23rd, 2010 @ 1:49pm

        Re: Re: So what happens if...

        "This site should be shut down by the US government for promoting anticopyright views. You're as bad as Obama, who should be shot for treason."

        Ideological Schizophrenia Much??   TechDirt =/= Obamaism

        *** Disclaimer: The following statement is a gross oversimplification and is not meant to be a comprehensive analysis of ANYTHING, just pointing out the dichotomy of the above comment. ***

        This site could be considered essentially conservative, in the sense that Mike et al and most of us that support it (and yes I am including myself in that statement even though I am a registered Democrat) demonstrate that we would mostly like the government to stay out of the way and let natural economics do its job. Obama on the other hand as far as I can tell has never met a government intervention he did not like.

         

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    Marcel de Jong (profile), Jun 22nd, 2010 @ 7:00am

    I'm starting to see the side of the copyright abologists

    I see where their argument comes from, and I am starting to move in that direction. More and more we see copyright being abused, and I don't think it will be solved by softening the terms.

    I'll continue my civil disobedience then. And only support acts/artists/writers/moviemakers, who embrace the new models, if I like their works.

    Expect this ruling to be abused for the years to come.

     

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      SteelWolf (profile), Jun 22nd, 2010 @ 7:35am

      Re: I'm starting to see the side of the copyright abologists

      Abologists? I like that.

      More and more we see copyright being abused, and I don't think it will be solved by softening the terms.

      Exactly.

      Keep in mind, however, that the best way to win this fight is to eliminate copyright not through law, but through obsolescence. The more people realize how much better a copyright-free business model works, the fewer people will feel the need to cling to it.

       

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        Marcel de Jong (profile), Jun 22nd, 2010 @ 7:55am

        Re: Re: I'm starting to see the side of the copyright abologists

        I'm going to trademark that word. [/irony]

         

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        Anonymous Coward, Jun 22nd, 2010 @ 7:58am

        Re: Re: I'm starting to see the side of the copyright abologists

        But that makes for the possibility of Congress passing more laws to impose copy protections on us. The solution to bad laws isn't through finding legal loopholes, it's either one of two (three) things.

        A: Seeking to change the law (ie: protest, voting, etc...)

        and if that doesn't work, as a second resort

        B: Civil disobedience

        and if that still fails

        C: Aggressive revolution :(

        but we're nowhere near C and civil disobedience probably isn't that necessary just yet being that we can still legally create indefinite creative commons works and we still have legal and reasonably efficient and effective distribution channels (mainly the Internet) despite being intentionally locked out of mainstream media (thanks to govt granted cableco monopolies) and public airwaves (thanks to FCC granted broadcasting monopolies).

        But one stipulation that should probably be added to a Creative Commons license is a specific time period that it applies for, that is, either until the copyright expires or indefinitely, whichever comes sooner. Make sure there is wording in the CC license that explicitly forbids license revocation.

        Kinda like if I licensed something to you to use from Jan 1 of 2010 to Dec 31 of 2010, I can't in the middle of the agreement arbitrarily change my mind and revoke it if the agreement allows no such thing. Same thing here. The CC license needs to explicitly state that this CC license is irrevocable by the copy privilege holder.

        Now, if the law starts making it possible to then revoke such CC (or GPL) licenses despite explicit language in the license forbidding such a thing then B and C start to become more acceptable options. In the mean time we can simply find contractual work arounds to copyright.

         

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          SteelWolf (profile), Jun 22nd, 2010 @ 8:08am

          Re: Re: Re: I'm starting to see the side of the copyright abologists

          we can still legally create indefinite creative commons works

          Creative Commons is worse than copyright as it promotes the same kind of dangerous "permission culture" it purports to eliminate. It creates an entirely new thicket around terms like "attribution" and "noncommercial use" that are entirely unnecessary.

          Once you release your content publicly, there is no control. That wasn't what copyright was about in the first place anyway, and it is completely unnecessary. Just look at this site, people can and do copy TechDirt all the time and I don't see them having any problems.

           

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            Anonymous Coward, Jun 22nd, 2010 @ 8:20am

            Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

            It depends on the specific CC license that something is released under. To say that CC is worse than copyright I think is misleading. An attribution and non commercial use clause is better than no permission to do anything, which copyright allows for.

             

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              SteelWolf (profile), Jun 22nd, 2010 @ 9:17am

              Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

              An attribution and non commercial use clause is better than no permission to do anything, which copyright allows for.

              But only marginally so, at least in my opinion. I think that the biggest issue we're facing today is the mistaken idea that copyright is somehow about artist control (just see TP's numerous posts).

              CC reinforces this false notion - it's basically the same copyright the maximalists want, only with permissions "pre-approved." It doesn't address the core of the issue, which is the idea that permission must be sought in the first place.

               

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                senshikaze (profile), Jun 22nd, 2010 @ 9:27am

                Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                CC is more of an understanding between the creator and the consumer. Instead of with copyright where the entire arm of the law can come down on if the creator thinks that suddenly fair use is wrong(see DMCA), you have basic rights to use and share with CC. What CC basically is setting current copyright law in stone, not hidden (no "all rights reserved" bs). I know that CC-by-nc is creative commons, share alike, non-commercial and attribution. I know what I can and can't do with that work.

                 

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                  SteelWolf (profile), Jun 22nd, 2010 @ 12:43pm

                  Re: Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                  I know what I can and can't do with that work.

                  That's the problem. The originator of the work has no ability to enforce those restrictions, doesn't have to right to, and shouldn't. The idea that you can mark out a line on the sand and say, "This is allowed, this is not" is incorrect.

                  And that doesn't even get into the ambiguity over what constitutes noncommercial use.

                   

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                Anonymous Coward, Jun 22nd, 2010 @ 9:30am

                Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                Countries with no known copyright law: Afghanistan, Anguilla, Aruba, the Cayman Islands, Eritrea, the Marshall Islands, Nauru, San Marino, São Tomé, Turkmenistan, and Vanuatu.

                Perhaps you may wish to consider the above countries as places for establishing a residence.

                 

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                  SteelWolf (profile), Jun 22nd, 2010 @ 12:48pm

                  Re: Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                  Who said anything about moving?

                   

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                  Anonymous Coward, Jun 27th, 2010 @ 4:21pm

                  Re: Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                  Yet these countries produce music and art and whatnot perfectly fine without copy protection laws. After all, if something was produced without such protections then clearly these protections aren't needed to produce them. So what's the point in retroactively applying protections to something that was created without protections and didn't need protections to create?

                   

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              Free Capitalist (profile), Jun 22nd, 2010 @ 9:18am

              Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

              I hear where both of you are SteelWolf coming from. CC is a lot like a counter-copyright copyright. It seems a worthy cause, but in reality one really cannot control information once it is in the public

              The biggest problem I see for CC is in the courts. The way things are going, CC works will soon be rolled over in the courts by corporations that steal the work then get a "real" copyright. The justification will be that the original artist did not do enough to protect their IP, and therefore is infringing on the "valid" work. This will be outrageous and palpably "illegal", true, but in this case, the court removed itself from using any reason on the issue.

              De facto abolition is the only way to go when the institutions that were supposed to deal with Constitutional issues refuse to do so in a particular business case (in the interest of the government...)

              Living free is not a government granted monopoly -- just do it.

               

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                SteelWolf (profile), Jun 22nd, 2010 @ 12:49pm

                Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                Well said. Even if CC doesn't get trampled in courts, I think we could see a whole new crop of cases around terms like noncommercial use.

                 

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                  Technopolitical (profile), Jun 23rd, 2010 @ 4:17am

                  Re: Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                  IF the creating Artist puts their creation into CC , that is their "right to do" OR "not to do" -- and the Artist can change their mind at will on CC.

                  pretty simple.

                   

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            senshikaze (profile), Jun 22nd, 2010 @ 9:23am

            Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

            I don't think CC is worse than copyright.
            copyright is saying you can only do what i say.
            CC is saying here is my work, I ask only for X, Y, Z, etc.
            Instead of demanding rights, you ask for them.
            It may be much the same thing on paper(rememberer, CC has to fit within current copyright law), but it is a different way of doing it. As a consumer, when I see CC, i know that the author cares about not just his profits, but that I have the freedom to my own rights. I would rather buy CC than copywrong.

             

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            Nina Paley (profile), Jun 22nd, 2010 @ 10:53am

            Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

            Creative Commons is worse than copyright as it promotes the same kind of dangerous "permission culture" it purports to eliminate. It creates an entirely new thicket around terms like "attribution" and "noncommercial use" that are entirely unnecessary.

            Not worse than copyright, but I agree with the rest, and I hate that CC's genuinely Free licenses (Share-Alike (copyleft), CC-0, and Attribution only) are lumped in with their restrictive -NC and -ND licenses, so all are called just "Creative Commons licenses." CC-NC and CC-ND are CC-BS.

            I don't want license proliferation, which is why I use CC's BY-SA, but I wish there were a viable competing organization that offered only Free licenses. I don't support over half of CC's licenses, and hate the implication that my use of their Free license means I support all their unfree crap.

             

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              SteelWolf (profile), Jun 22nd, 2010 @ 12:55pm

              Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

              Okay, "worse than copyright" might be a little strong.

              I've struggled with this issue myself, and it's seeming the best way to indicate a free license is no license at all. I assume you've read the text of some of the free CC licenses where they attempt to disavow fundamental things like authorship - there's no way I'd want to attach things to that.

              TechDirt seems to do okay with nothing at all. I'm thinking I might just do that, maybe adding something like "If you do something with it, I'd love to know." I imagine the situation might be a little different for you in the film world, though.

               

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                Nina Paley (profile), Jun 22nd, 2010 @ 3:23pm

                Re: Re: Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

                I need to send a stronger signal that my work is Free. Viewers need to know they can legally copy and share the work, which is vital to the film's distribution. Other artists and innovators need to know they won't be sued for building on the work. Otherwise it will be assumed "owned" by default - and the law backs that up. Free licenses aren't a perfect solution, but they're the best solution we've got in this everything-copyrighted-by-default regime.

                 

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            Richard (profile), Jun 22nd, 2010 @ 10:59am

            Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

            Creative Commons is worse than copyright as it promotes the same kind of dangerous "permission culture" it purports to eliminate. It creates an entirely new thicket around terms like "attribution" and "noncommercial use" that are entirely unnecessary.

            Maybe - but it provides a gentle route from "all rights reserved" to properly free content for those who are uncertain.

            Seen as a road rather than a destination it is fine.

             

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          Ted Smiles, Jun 22nd, 2010 @ 11:46am

          Re: I'm starting to see the side of the copyright abologists

          First off, there is no such thing as a license for listening to music or watching a movie. A license is issued by a governing body. You need a license to drive a car or to practice medicine. Copyright allows the copyright holder exclusive rights to copy and sell the product, to make money off of it. Lecenses otherwise are a fabrication of the media industry, the press and word of mouth. So, if you sell a copy of it, or deprive them of a sale of their product, then you are in violation of copyright, otherwise there is none.

          Corporations already do violate contracts. In those contracts they almost always includ a clause saying they reserve the right to change it anyway they wish, without any notice, and although this is unconscionable, our courts and law enforcers continue to ignore it.

          Personally, I am at option B. I will not hesitate to buy every single CD of an artist who in some way is supporting the RIAA, and will convert those CD's into MP3s for anybody that wants them, and will pass it out via sneakernet. Just like the BBSs of the old days. Untrackable.

          They play their games, we play ours.

           

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            Technopolitical (profile), Jun 23rd, 2010 @ 4:23am

            Re: Re: I'm starting to see the side of the copyright abologists

            YOU : They play their games, we play ours.

            Me : except your games are immoral & illegal

             

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              Richard (profile), Jun 23rd, 2010 @ 2:42pm

              Re: Re: Re: I'm starting to see the side of the copyright abologists

              except your games are immoral & illegal

              Yours are immoral - and only legal because you have engaged in immoral lobbying (for over 300 years).

               

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            Richard (profile), Jun 23rd, 2010 @ 2:41pm

            Re: Re: I'm starting to see the side of the copyright abologists

            First off, there is no such thing as a license for listening to music or watching a movie. A license is issued by a governing body. You need a license to drive a car or to practice medicine. Copyright allows the copyright holder exclusive rights to copy and sell the product, to make money off of it. Lecenses otherwise are a fabrication of the media industry, the press and word of mouth.

            Except that CC licenses are a relaxation of what copyright allows. They merely specify the parts of copyright that the holder wishes to retain - (or needs to retain in order that others cannot reimpose restrictions).

            Compared to the licenses you are talking about these are more like anti-licenses.

             

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          kameraadpjotr (profile), Jun 23rd, 2010 @ 12:36am

          Re: Re: Re: I'm starting to see the side of the copyright abologists

          Creative Commons licenses (and the GFDL for that matter) are non-revocable ("[the] Licensor hereby grants [the user] a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work [...]")
          http://en.wikipedia.org/wiki/Wikipedia%3ARevocation_of_our_licensing_is_not_permitted#The_i nability_to_revoke

           

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          Glen STark, Jun 25th, 2010 @ 5:28am

          Re: Re: Re: I'm starting to see the side of the copyright abologists


          A: Seeking to change the law (ie: protest, voting, etc...)

          and if that doesn't work, as a second resort

          B: Civil disobedience

          and if that still fails

          C: Aggressive revolution :(


          No, aggressive revolution is never the answer. At best it is a substitution of problems. Violence puts violent people into power, nearly without fail. This process inherently corrupts the revolution, whatever the original intent of the revolutionists mights have been. George Orwell wrote a book about it, and Ghandi showed us a better way. If you haven't seen it yet, I highly recommend watching the film Ghandi. It's available over at pirate bay, and is truly inspirational.


          The big problem with piracy as civil disobedience is it isn't being done effectively enough. About the only people actually doing it well as civil disobedience are the pirate party and the pirate bay organizers. Back during the DCSS baloney there was some pretty good action, what with attending the trials with the DCSS code on T-shirts and all.


          The problem is,that with piracy as it is currently being practised, it's too easy for the copyright queens to paint it as simple greed, or successfully frame it as theft. What we should be doing is organizing public demonstrations. A very effective approach would be, for example, to organize a national day of protest of copyright law, where a large number of us make a commitment to go door to door giving out free copies of copyrighted media which uncontroversially belongs in the public domain. A good work would be Orwell's 1984, since that would long be in the public domain if not for the Disney laws, and the work itself makes a poignant statement.


          Is anyone interested in organizing such a thing? If we could get thousands of people to participate in such an action, the impact would be profound. Again, reference Ghandi. He started with small, concrete goals, for which good civil disobedience actions could be organized. Gradually he had success after success, eventually leading to driving the British out of India. A good CD would involve such coordinated, progressive action with small incremental changes. The journey of a hundred miles starts with a single step after all.


          If anyone is interested in organizing such an action, please contact me.

           

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            SteelWolf (profile), Jun 25th, 2010 @ 7:21am

            Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

            That's a little difficult when you don't have any contact information.

             

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            Technopolitical (profile), Jun 25th, 2010 @ 7:43am

            The big problem with piracy as civil disobedience is it isn't being done effectively enough.

            YOU :
            The big problem with piracy as civil disobedience is it isn't being done effectively enough.

            Me : Piracy is NOT C.D. by any definition

            --------------
            "civil disobedience" must be non-violent, both "physically and economically" -- meaning not take some thing for free ,

            and "civil disobedience" will always offer no resistance to arrest and accept WHATEVER civil pentalites the "state" deems.

            "Civil disobedience" is to make a statement politically-- w/o any public harm.

            Illegal File Sharing & Piracy IS NOT civil disobedience -- is is just breaking the law.

            -----------

            some links :

            "Civil disobedience no excuse for breaking laws, judge rules"


            By Ian Mulgrew, Vancouver Sun June 2, 2010

            Read more: http://www.vancouversun.com/Civil+disobedience+excuse+breaking+laws+judge+rules/3103538/story.html#i xzz0rrtXVVCX

            ------------------
            "Civil disobedience is the active refusal to obey certain laws, demands, and commands of a government, or of an occupying international power, using no form of violence. It is one of the primary methods of nonviolent resistance"

            http://en.wikipedia.org/wiki/Civil_disobedience

            "Thoreau's 1848 essay Civil Disobedience, originally titled "Resistance to Civil Government", the driving idea behind the essay was that of self-reliance, and also how one is in morally good standing as long as one can "get off another man's back"; so one does not necessarily have to physically fight the government, but one must not support it or have it support one (if one is against it). This essay has had a wide influence on many later practitioners of civil disobedience. In the essay, Thoreau explained his reasons for having refused to pay taxes as an act of protest against slavery and against the Mexican-American War."

            http://en.wikipedia.org/wiki/Civil_disobedience

             

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        nasch (profile), Jun 22nd, 2010 @ 11:51am

        Re: Re: I'm starting to see the side of the copyright abologists

        Abologists? I like that.

        Actually I first read it as "apologists" (since that's actually a word, unlike "abologists") and it made no sense at all since it meant the opposite of what he's saying. The existing word "abolitionists" is perfectly suitable.

         

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        Anne Observer, Jun 22nd, 2010 @ 12:46pm

        Re: Re: I'm starting to see the side of the copyright abologists

        The fact that copyright laws have been increasingly abused in recent years is a good argument for getting rid of those laws that are abused, like certain sections of the DMCA, for example. And outrageously long terms for copyright like life + many years.

        But it is NOT a valid argument for abolishing copyrights. Copyrights were ultimately established for the PUBLIC GOOD, and they do contribute greatly to the public good. It is where the abuse of copyright no longer serves the public good that changes need to be made.

         

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          SteelWolf (profile), Jun 22nd, 2010 @ 12:59pm

          Re: Re: Re: I'm starting to see the side of the copyright abologists

          they do contribute greatly to the public good.

          I have yet to see empirical evidence of this, the prime example being all content created pre-copyright. I would even go as far as to say that there is not a single thing that we have seen since the Statute of Anne that was so incentivised by copyright that it would not have happened without it.

           

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            Anonymous Coward, Jun 22nd, 2010 @ 6:03pm

            Re: Re: Re: Re: I'm starting to see the side of the copyright abologists

            "I would even go as far as to say that there is not a single thing that we have seen since the Statute of Anne that was so incentivised by copyright that it would not have happened without it."

            Except maybe things like shadow the hedgehog which were nothing more than cash ins of popular names. To be fair, those kinds of works don't really contribute anything to the public anyway.

             

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    crade (profile), Jun 22nd, 2010 @ 7:30am

    Just one more in a long line of safeguards to ensure the government is actually answerable to the people that has been removed or circumvented.

     

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    Anonymous Coward, Jun 22nd, 2010 @ 7:42am

    So much about IP being about promoting the progress. Well, it does promote the progress of corporate interests I suppose, doesn't that count for something?

     

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    Anonymous Coward, Jun 22nd, 2010 @ 7:42am

    "The whole point of the First Amendment was to protect citizens' interests against situations where the government's interests went against citizens' interests." - creep much? the first amendment is about free speech, not about balancing laws. it gives the people the right to speak out against laws they do not like, but it does not give them a veto card over government legislation, unless it is very specifically limited free speech.

    if this decision curtailed your free speech rights, posting about it would break the law. mike, you know better, why post something like this? i assume you are in rant mode.

     

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      Anonymous Coward, Jun 22nd, 2010 @ 7:45am

      Re:

      "if this decision curtailed your free speech rights, posting about it would break the law."

      Where did you get your degree in logic? Oh, I know, I know, from the RIAA!!! I hear they offer wonderful brainwashing Scholarships too.

       

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      robin, Jun 22nd, 2010 @ 7:50am

      Re:

      ...but it does not give them a veto card over government legislation, unless it is very specifically limited free speech.


      which this decision does. end of discussion.

      if this decision curtailed your free speech rights, posting about it would break the law...


      left, meet field. together the two of you might be able to re-direct this conversation.

       

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      Dark Helmet (profile), Jun 22nd, 2010 @ 8:43am

      Re:

      "if this decision curtailed your free speech rights, posting about it would break the law. mike, you know better, why post something like this? i assume you are in rant mode."

      Er, nice try? When Mike says the ruling curtails free speech, he's talking about free speech in general, not his specifically. Or did you simply miss the very clear point in the article:

      "In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain."

      If you are utilizing a public domain work within your own work, and the ability to do that is taken away, your 1st amendment rights have been taken away. Which, if you're a reasonable person and a patriot, is a very bad thing....

       

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        Anonymous Coward, Jun 22nd, 2010 @ 10:15am

        Re: Re:

        the ruling does not curtain free speech. actually, it brings a better question, which is how would the ruling effect anyone who used the work(s) in question while they were in the public domain? how long were they in fact in the public domain? what actual free speech was stopped (as opposed to the theoretical)?

        "If you are utilizing a public domain work within your own work, and the ability to do that is taken away" - it would depend how it was taken away. if you couldnt use it in future new products, but you could continue to reproduce the old product, is free speech truly curtailed?

         

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          Dark Helmet (profile), Jun 22nd, 2010 @ 10:18am

          Re: Re: Re:

          "it would depend how it was taken away. if you couldnt use it in future new products, but you could continue to reproduce the old product, is free speech truly curtailed?"

          Yes, of course it is. The right to free speech isn't only on things that are actually said, but on things that could potentially be said as well. To suggest otherwise is silly. If I have never used the phrase "cock sandwich" in my entire life, and then the govt. made it illegal to use that phrase, my free speech rights have still been infringed upon....

           

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      JEDIDIAH, Jun 22nd, 2010 @ 10:04am

      Ignore civics at your own peril.

      > if this decision curtailed your free speech rights,
      > posting about it would break the law. mike, you know
      > better, why post something like this? i assume you are in
      > rant mode.

      This is a legal precedent. Now it can be used and abused for other purposes that don't have anything to do with copyright. That is how the British Common Law system we have here works.

      It is a slippery slope by definition.

      If you let the RIAA through the door, someone else will come in behind them.

      THAT is the problem with this decision. It's about the "big picture" rather then your own petty little agenda.

       

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      Anonymous Coward, Jun 22nd, 2010 @ 10:11am

      Re:

      Oh look, all of Mike's minions are shouting down a moron, and that's not fair!

       

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      Gramps, Jun 23rd, 2010 @ 6:47am

      Re: First Amendment and Constitutional Responsibility

      Actually the people can, SPECIFICALLY, nullify or veto ANY law created by Congress or by the legislatures of any state. The process is called 'Jury Nullification.' In this case the law does not violate the First Amendment but it does violate number 9 & 10. The First Admendment is about freedom of expression according to repeated Supreme Court rulings NOT about sellng, distributing or using someone ELSE's expression. Admendments 9 & 10 specify that any powers NOT SPECIFICALLY GIVEN TO CONGRESS BY THE CONSTITUTION belong to the people or to the States. If this law violates any other part of the Constitution it is the Fourth Amendment which protects property rights. It could be effectively argued that once an item is in the public domain that removing it presents a deprivation of property without due process. THAT is a violation of the Fourth Amendment. Unfortunately lower courts tend to ignore that amendment and even the Supreme Court has treated it rather off-handedly.

       

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        Technopolitical (profile), Jun 23rd, 2010 @ 1:12pm

        All " Jury nullification " is says that in this case there are circumstances that warrant acquittal ,//Re: Re: First Amendment and Constitutional Responsibility

        YOU :Actually the people can, SPECIFICALLY, nullify or veto ANY law created by Congress or by the legislatures of any state. The process is called 'Jury Nullification.'


        ME : Highly nonfactual statement :

        FROM : Wikipedia, the free encyclopedia
        "Jury nullification occurs when a jury in a criminal case acquits a defendant despite the weight of evidence against him or her. "

        ME : All " Jury nullification " is says that in this case there are circumstances that warrant acquittal , it does not nullify a "law" -- only Judges and in the final say SCOTUS can do that .

        SEE : http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
        ------------------------ --------------
        ME : Please do some research before you post on constitutional law.

         

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    John Doe, Jun 22nd, 2010 @ 7:52am

    They don't care about the Constitution

    They also don't understand the 2nd amendment either; "the right of the people to keep and bear Arms, shall not be infringed". That one is being infringed all over the place.

     

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      Marcel de Jong (profile), Jun 22nd, 2010 @ 7:58am

      Re: They don't care about the Constitution

      What the meant with the 2nd amendment: Everyone is entitled to have bear arms on their mantelpiece.

       

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      Anonymous Coward, Jun 22nd, 2010 @ 9:04am

      Re: They don't care about the Constitution

      Yes, and thats what the National Guard is for. You know, a well-armed militia? Are you part of a militia? Or are you a White Supremacist/Neo-Nazi who loves military weaponry and considers a Hecate II anti-material rifle something that should be sold to the civilian population?

       

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        Dark Helmet (profile), Jun 22nd, 2010 @ 9:18am

        Re: Re: They don't care about the Constitution

        You're purposefully misunderstanding what the 2nd amendment is all about. It was supposed to give American citizens a way to battle their own government should they become tyranical. Therefore, if the govt. has tanks, the citizens SHOULD be allowed to have anti-tank weaponry....

        And before we hear all about how citizens can't be entrusted with large and/or volatile weaponry, what reason do we have to trust the government with it? Which group, citizens or govt., has demonstrated that they can't be trusted with weapons more?

         

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          Free Capitalist (profile), Jun 22nd, 2010 @ 9:32am

          Re: Re: Re: They don't care about the Constitution

          And before we hear all about how citizens can't be entrusted with large and/or volatile weaponry, what reason do we have to trust the government with it?


          I think the official stance in this case is now more akin to Marcel de Jong's (sarcastic) take on the issue. (see above in this thread)

          There is no reasoning with a tyranny's parrots.

           

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          John Doe, Jun 22nd, 2010 @ 9:51am

          Re: Re: Re: They don't care about the Constitution

          You are the first person I have seen who truly gets it. There were various types of canons around when the Constitution was written and yet they didn't forbid those. They obviously knew that you must be on equal footing firepower wise to mount a resistance. Now I stop short of advocating citizens own stuff like that, but I feel like the founding fathers would be all for it.

           

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          JEDIDIAH, Jun 22nd, 2010 @ 10:06am

          Re: Re: Re: They don't care about the Constitution

          > Therefore, if the govt. has tanks, the citizens SHOULD be allowed to have anti-tank weaponry....

          It doesn't really take much actually. A lot of it is about gall and guile. They teach you how to do this sort of stuff in infantry school. While you can't get C4 at the corner drugstore, it's not really necessary. It's nearly impossible to suppress technology in a technologically sophisticated society.

           

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          JC, Jun 22nd, 2010 @ 10:39am

          Re: Re: Re: They don't care about the Constitution

          "Therefore, if the govt. has tanks, the citizens SHOULD be allowed to have anti-tank weaponry."

          I like most of your posts Dark Helmet but this type of thing is a little ... strange.

          On the one hand, I believe people should have the ability to stand up to their government. On the other hand, the "founding fathers" didn't have nuclear weapons to deal with.

          I don't really trust our government with nuclear weapons ... but I'm not excited by the idea of a Tea Party wacko wandering down to the local Walmart and buying an atomic bomb.

           

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            Nastybutler77 (profile), Jun 22nd, 2010 @ 11:17am

            Re: Re: Re: Re: They don't care about the Constitution

            "I don't really trust our government with nuclear weapons ... but I'm not excited by the idea of a Tea Party wacko wandering down to the local Walmart and buying an atomic bomb."

            As long as we all have one then the threat of mutually assured destruction would hopefully act as a deterant. The group that seems immune to that threat is radical Muslims. The Tea Party wacko doesn't want to die any more than you do. Al Queda? They're more than happy to throw their lives away.

            And for those who think only the police and military should have guns, how much do you trust the government?

            But back on topic, hopefully when this decision is appealed the next ruling might actually take the First Amendment at face value and not assume that Congress knows best.

             

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              DJC, Jun 22nd, 2010 @ 3:10pm

              Re: Re: Re: Re: Re: They don't care about the Constitution

              "As long as we all have one then the threat of mutually assured destruction would hopefully act as a deterant."

              Are you serious? Take someone like Timothy McVeigh. Do you really think the risk of dying would have prevented him from using a nuclear weapon if he had one? If you answer yes, then there is no point to this discussion.

              I'm far more afraid of an individual or a small group having access to WMDs than governments. The concept of "mutually assured destruction" applies to governments who wish to remain in existence, not to individuals that are more than willing to die for their cause. And I'm most definitely not singling out radical Muslims, there are innumerable examples of "good Christian" Americans that slaughter any number of innocent people and then kill themselves.

               

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              DJC, Jun 22nd, 2010 @ 3:10pm

              Re: Re: Re: Re: Re: They don't care about the Constitution

              "As long as we all have one then the threat of mutually assured destruction would hopefully act as a deterant."

              Are you serious? Take someone like Timothy McVeigh. Do you really think the risk of dying would have prevented him from using a nuclear weapon if he had one? If you answer yes, then there is no point to this discussion.

              I'm far more afraid of an individual or a small group having access to WMDs than governments. The concept of "mutually assured destruction" applies to governments who wish to remain in existence, not to individuals that are more than willing to die for their cause. And I'm most definitely not singling out radical Muslims, there are innumerable examples of "good Christian" Americans that slaughter any number of innocent people and then kill themselves.

               

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              Gramps, Jun 23rd, 2010 @ 7:08am

              Re: Re: Re: Re: Re: They don't care about the Constitution

              The Founding Fathers could not have conceived of a nuclear bomb but they knew all about biological warfare and did NOT prohibit it from the people. That should tell you quite a bit about their intent in the Second Amendment. Even the Supreme Court determined in its earliest Second Amendment decisions that that amendment protected the right of the people to own and use 'weapons in common use at the time' within the 'armed forces or the militia.' BTW The militia is defined under Federal law as all free males over the age of 18 and that definition has never been changed. Also for those of you without a historical bent the "well regulated militia" clause in the Second Amendment, even if it WAS a obligatory clause which it is not, means a WELL TRAINED militia not a CONTROLLED militia.

               

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            Dark Helmet (profile), Jun 22nd, 2010 @ 11:35am

            Re: Re: Re: Re: They don't care about the Constitution

            "I like most of your posts Dark Helmet but this type of thing is a little ... strange."

            Is it? Why? The founding fathers warned us that we must always be vigilant to the threat of tyranical government. That's the expressed reason they gave us the right to arms, so that we could fight our own government. Therefore, it follows logically that we ought to have the counter weapon or defense of any weapon our government possesses.

            "On the one hand, I believe people should have the ability to stand up to their government. On the other hand, the "founding fathers" didn't have nuclear weapons to deal with."

            That's why the founding fathers were so smart. You'll notice that they didn't say we have a right to bear muskets, or the right to bear dynamite. They left it open, as they did with much of the constitution, so that it might keep up with the times....

            "I don't really trust our government with nuclear weapons ... but I'm not excited by the idea of a Tea Party wacko wandering down to the local Walmart and buying an atomic bomb."

            I am 100% completely w/you on this. But here's the thing, which do you like better? Both sides having a weapon, or only one side, particularly when that one side is a powerful federal government with a penchant for encroaching on the rights of it's citizens?

             

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        John Doe, Jun 22nd, 2010 @ 9:48am

        Re: Re: They don't care about the Constitution

        Great strawman you throw up there. I must admire the effort. But no, I am not in the skinheads, militia or even the NRA. I am just a hunter and occasional target shooter.

        Fortunately, there is nothing in the Constitution to limit what you can do with the gun, except for murder of course. So you can have one just to have it or you can target shoot, hunt, or carry for self defense. That is what they mean by "shall not be infringed". It would be infringing just to say you can only have it for target shooting.

         

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        Anonymous Coward, Jun 22nd, 2010 @ 11:26am

        Re: Re: They don't care about the Constitution

        Your assertion depends on the idea that the Second Amendment is not an individual right and depends upon membership in a militia.

        Several problems with this reading of the Amendment:

        1. USSC recently settled the question by ruling it is in fact an individual right.
        2. Bill of Rights does not grant rights, it enumerates specific rights that shall not be abridged; by definition, citizens have all rights not restricted by the Constitution.
        3. The phrase "well regulated" does not mean organized; in 18th century American English, it meant "equipped"
        4. Tons of writing by the founders on the topic disagrees with the underpinnings of your logic.

        Check the works cited in D.C. v Heller

         

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          Dark Helmet (profile), Jun 22nd, 2010 @ 11:52am

          Re: Re: Re: They don't care about the Constitution

          I'd add this little context from one of our founding fathers:

          "[I]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens." - Alexander Hamilton

           

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          John Doe, Jun 22nd, 2010 @ 6:58pm

          Re: Re: Re: They don't care about the Constitution

          Exactly! If all the anti-gunners would read the supporting writing by the founding fathers, they would see that they absolutely meant for individuals to keep and bear arms. But then again, anti-gunners don't live in the real world. They live in an imaginary world where if something is outlawed, nobody will do it. Nevermind history proves time and again that it doesn't work. Prohibition gave rise to the mafia, drugs give rise to gangs and smuggling, copyright laws give rise to piracy. Not that I am equating pirates to mafia or drug lords. Though the pirates who patrolled the seas might qualify. :)

           

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          Technopolitical (profile), Jun 23rd, 2010 @ 4:28am

          Re: Re: Re: They don't care about the Constitution

          great post AC .

          Good understanding of Constitutional law.

          The Pirates will mis-understand as usual

           

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          liberal, Jun 25th, 2010 @ 10:45am

          Re: Re: Re: They don't care about the Constitution

          "3. The phrase "well regulated" does not mean organized; in 18th century American English, it meant "equipped""

          LOL.

          And in 18th century American English, "arms" didn't refer to automatic weapons.

           

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        bobbity bob, Jun 22nd, 2010 @ 7:23pm

        Re: Re: They don't care about the Constitution

        Uh, no, the National Guard is NOT the militia the framers were speaking of. You need to read the Constitution again then read the Federalist papers, then read the Jefferson/Adams letters.

        A militia, in current American law, is ALL male citizens, 17-40, NOT currently serving in an armed force of the US. (Look it up, I was surprised myself).

        See, the framers were rightfully very concerned about standing armies - they knew that standing armies WOULD be used, and if you don't have a target for them, they'll find one.

        They only wanted an army as needed, with the idea that it was the RIGHT (as well as obligation) of every male citizen to be able to defend his home (i.e. his land/town/county/state).

         

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          liberal, Jun 25th, 2010 @ 10:44am

          Re: Re: Re: They don't care about the Constitution

          "A militia, in current American law, is ALL male citizens, 17-40, NOT currently serving in an armed force of the US. (Look it up, I was surprised myself)."

          OK...what's the meaning of "well regulated"?

           

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      liberal, Jun 25th, 2010 @ 10:40am

      Re: They don't care about the Constitution

      Uh, that's not the full text of the second amendment.

       

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      Anonymous Coward, Jun 25th, 2010 @ 11:05am

      Re: They don't care about the Constitution

      That's because they think that the Constitution comes on rolls next to the toilet...

       

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    Anonymous Coward, Jun 22nd, 2010 @ 7:55am

    Next up, Shakespears plays are put back under copyright.

    Fuck you, industry. Everyone just pirate everything, theres no point in continuing this corporate welfare program.

     

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    iamtheky (profile), Jun 22nd, 2010 @ 8:02am

    ummm..

    "Getting a second crack at this, the district court got it right -- and was the first court to point out that copyright massively expanded copyright law can, in fact, violate the First Amendment."

    ...copyright massively expanded copyright law can....fantastic

     

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    NAMELESS.ONE, Jun 22nd, 2010 @ 8:15am

    time to dump copyrights PERIOD

    the abuse is pathetic
    TIME TO GIVE LAWYERS A HOLLIDAY

     

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    NAMELESS.ONE, Jun 22nd, 2010 @ 8:18am

    @1

    no what they want is you to just stop publishing
    THTAS right i now believe that how ever is behind all this wants mankind to just sit on his but doing nohting anymore

    FUCK YOU LAZY pricks

     

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    btr1701 (profile), Jun 22nd, 2010 @ 8:26am

    1st Amendment

    > copyright law "addresses a substantial or important governmental
    > interest." This is, plainly speaking, ridiculous. The argument effectively
    > says that the government can violate the basic principles of the
    > First Amendment any time it wants, so long as it shows a "substantial
    > or important government interest."

    While I agree that this is bad decision-- that once a work is in the public domain, the government shouldn't be able to re-copyright it-- the "substantial or important governmental interest" standard has been a bedrock standard in constitutional law for decades. No rights are absolute and the Supreme Court developed the "substantial or important governmental interest" test almost a hundred years ago. If the government meets that standard, it can act where it otherwise could not.

    The "exigent circumstances" exception to the 4th Amendment's warrant requirement; the "clear and present danger" exception to the 1st Amendment are but two examples where the Court has held that a "substantial or important governmental interest" is served despite the plain text of the Bill of Rights.

    The Court does hold the government to the highest standard in determining whether one of these exceptions is valid. The strict scrutiny required is a standard the government can rarely meet and that's what makes this ruling surprising. Not that the standard was employed, but that the appeals court found the government met its burden.

    Hopefully the Supreme Court will hear the case and employ a more rigorous analysis of the government's position.

     

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      chris (profile), Jun 22nd, 2010 @ 1:39pm

      Re: 1st Amendment

      "No rights are absolute" is as wrong as wrong can be. Natural inalienable rights are the foundation of American Revolutionary philosophy and cannot be altered or muted. The government has found legal methods to justify doing so, but that certainly does not make it right. To state that no rights are absolute as fact (especially in the context of a constitutional law discussion) is opening the doors to the kind of flexible, amoral logic required of tyrannical governments.

       

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        dreampod, Jun 22nd, 2010 @ 3:20pm

        Re: Re: 1st Amendment

        That kind of thinking is nonsense. The constitution itself from the very beginning has included a specific process to be changed (aka amendments). Furthermore the world in which the founding fathers of the United States lived in was profoundly different from the one today. To expect that they would be able to create a framework that would take into consideration all possible future outcomes in naive at best.

        For the courts to have interpreted the law that restricts rights is generally considered harmful but has been used to prevent even more significant harm (shouting Fire in a crowded theater for example). Legislation can create bad laws that violate (what most of us would consider) fundamental rights but is allowed to go forward because the rights are not enumerated. Overall I think that considering the validity of laws based on the constitution rather than the effect it would have is backwards.

        Indeed I would suggest that the misguided belief that all rights are absolute regardless of the consequences would profoundly offend the founders.

         

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        btr1701 (profile), Jun 22nd, 2010 @ 8:51pm

        Re: Re: 1st Amendment

        > No rights are absolute" is as wrong as wrong can be.

        I didn't say I agreed with it. Just commenting on the state of American jurisprudence as it currently exists.

         

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      GreyGeek, Jun 22nd, 2010 @ 2:59pm

      Re: 1st Amendment

      @btr1701:

      "No rights are absolute ..."

      Declaration of Independence:

      "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ..."

      Alienate: "to cause to be withdrawn or diverted"

      "Unalienable" rights are those which CANNOT be withdrawn, diverted, nullified or otherwise removed from the practices of all men. That is, a government CANNOT MORALLY, LEGALLY or ETHICALLY SEPARATE the exercise of those rights from men. Such rights are not granted by the Declaration of Independence or the Bill of Rights, or ANY government, they are GIFTS from the Creator. Indeed, government is granted its limited power from the people it governs.

      You are not alone in misunderstanding the source of human rights or the limitations of the power of government. Unfortunately too many in the legislative, judicial and executive branches, and some political organizations and social groups, think they hold the power to grant or remove any or all rights from the people.

      Thus, we have "hate" laws alienating free speech if it "offends" a "protected" class. A child cannot read a certain book in school because someone might confuse the teachers, principal and school board with Congress and thus believe, by some fuzzy logic, that a state authorized religion has been created by the simple act of that child reading that book, even though no one had been confused by such for over 200 years. The gun control laws alienated the 2nd Amendment until SCOTUS reversed decades of twisted logic with their June, 2009 ruling against the District of Columbia, which didn't stop the political powers in D.C from ignoring the SCOTUS ruling and continue with suppression as usual. The combined effects of the RICO Act, the PATRIOT ACT and the Homeland Security Act have essentially destroyed the remaining 10 Amendments to the Bill of Rights. Only the 3rd Amendment remains inviolate, but who knows for how long? So now you can be charged with being a "terrorist", but you are not allowed to face your accusers, see the evidence used to accuse you, you cannot even tell your wife or other family members you've been charged, and you have to prove yourself innocent instead of the state having to prove beyond a reasonable doubt that you are guilty. Oh, the trial is in a "special court" with a "special judge". In other words, a Kangaroo Trial stacked against you. A perfect weapon to silence political enemies or stifle debate. That's why all the pre-election campaign rhetoric about the PATRIOT ACT disappeared after the election, as evidenced by the DHS sending out bulletins to law enforcement agencies around the country describing ONE HALF of the population (vets returning from Iraq and members of conservative political parties) as "potential" terrorists!

      Is the Republic dead?

       

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        btr1701 (profile), Jun 22nd, 2010 @ 8:52pm

        Re: Re: 1st Amendment

        > You are not alone in misunderstanding the source of human rights
        > or the limitations of the power of government.

        Why do you assume I don't understand it? I didn't say I agreed with it. Just commenting on the state of American jurisprudence as it currently exists.

         

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        btr1701 (profile), Jun 22nd, 2010 @ 8:54pm

        Re: Re: 1st Amendment

        > they are GIFTS from the Creator

        Oh, please. Spare me the superstitious claptrap. If you want to have a discussion about natural rights, fine. But lets not bring imaginary invisible sky tyrants into it.

         

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          Anonymous Coward, Jun 23rd, 2010 @ 4:37am

          Re: Re: Re: 1st Amendment

          Keep in mind that "Creator" is defineable however you wish, whether as invisible sky tyrant or as your parents or whatever. Argue if you like, but you were created somehow.

           

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            btr1701 (profile), Jun 27th, 2010 @ 10:47pm

            Re: Re: Re: Re: 1st Amendment

            > Keep in mind that "Creator" is defineable however you wish

            The term as it was used in the Declaration and by GreyGreek above isn't just "creator". It's "The Creator". Singular. Which pretty much forecloses the idea that everyone's parents are the creators being referenced. No, it's clearly a reference to some kind of god figure, which is certainly nothing upon which to base a legal argument.

             

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    Overcast (profile), Jun 22nd, 2010 @ 8:28am

    Basically, it's clearly saying that copyright has nothing to do with rights or innovation - as much as it has to do with money and control.

    Funny - in over 8,500 years man has progressed in many ways, and in almost all cases the progress is still moving forward...

    Except for in politics - I guess the 'height' of political progress has been hit around 1776 and now we are on the down-slide back to feudalism.

     

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    bob, Jun 22nd, 2010 @ 8:40am

    See

    We no longer have a Government of by and for the people, when the US Constitution can be interpreted willy nilly it makes for tyranny and the people fear the government.

     

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    WammerJammer (profile), Jun 22nd, 2010 @ 8:59am

    Get the facts

    This was passed down by a district court, a nobody in the grand scheme of things. I can start a company in East Texas and get a judgement that benefits me from the district court there just because I have a company there. It's a known fact that many of the copyright, trademark and patent infringement cases have been filed in E. Texas. So who cares? It will get overturned in the next appeal. I mean really? A district court deserves such a long rant. Most district courts are extremely biased and only help local people. If it were the Supreme Court I would be worried. After the elections are over there may be more common sense in the new electorate to congress. We can only dream.
    This battle will continue because it is good for business. All of the free press about the subject would make me excited if I worked for the entertainment industry. As long as you have retired RIAA executives on the Copyright Offices Board the game is already bought and paid for by the big boys. The 'small people' have no chance. Follow the money!

     

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      Christopher Weigel (profile), Jun 22nd, 2010 @ 9:14am

      Re: Get the facts

      I find it funny that someone saying "get the facts straight" immediately follows this statement with a misstatement of facts.

      This was the appellate court's decision, moron. A Federal appellate court. Beyond this there are only 2 steps, as Mike mentioned in the article.

       

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      Anonymous Coward, Jun 22nd, 2010 @ 9:27am

      Re: Get the facts

      I can start a company in East Texas and get a judgement that benefits me from the district court there just because I have a company there. ... So who cares?"

      Appellate courts do not take very many federal district court cases and how many cases does the supreme court take and what percentage of cases does the supreme court take? Simply put, federal district courts take many more cases than do appellate courts and are much more capable of enforcing whatever laws they want than are appellate courts. If a federal district court decided to consistently rule a certain way despite consistently contradictory appellate court rulings the appellate court will most likely only take a fraction of the cases and so many cases will still be ruled against the appellate court's precedent. And this venue shopping nonsense makes things even worse and with respect to East Texas the appellate courts were also in East Texas and they were bias just as well.

      "A district court deserves such a long rant."

      This ruling was by an appellate court and YES a district court absolutely does deserve such a rant. Even if whoever should rightfully win the case ends up winning on appeal the fact that they had to spend a substantial sum of resources and time/money to win instead of just getting summary judgment from the outset is a huge economical and governmental inefficiency and that alone restricts our rights being that it will be a detriment to everyone unwilling to spend the money and time necessary to fight unnecessarily expensive lawsuits.

       

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    senshikaze (profile), Jun 22nd, 2010 @ 9:13am

    Rise against the corrupt rulers! the only way to freedom is through revolution!

     

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    Chris in Utah, Jun 22nd, 2010 @ 9:30am

    Sounds like infowars around here. Hoo rah. Our founding fathers put faith in a well armed militia, not a standing army. Figure that one out.

    Want a scary one? Posse commentates is effective null and void with the Patriot Act. The advertisements now for the National Guard are troops on your streets. Apparently we serfs cant fix a problem on our own.

     

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      Dark Helmet (profile), Jun 22nd, 2010 @ 9:39am

      Re:

      "Want a scary one? Posse commentates is effective null and void with the Patriot Act."

      I've been reading about that a lot too, but it was gone long before the Patriot Act. The problem is that if you do much digging on the subject, a lot of the best information come from Tacmar conspiracy nuts (and yes, even to me, those people are kind of crazy)....

       

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    tracker1, Jun 22nd, 2010 @ 10:23am

    Nazi Treaty

    Hmm... I hate to go down this path, but... if the U.S. had made a treaty with Germany to kill all the Jewish people on U.S. soil, then the courts should just stay out of said issue, because it's in the government's interest?

     

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      Gramps, Jun 23rd, 2010 @ 7:21am

      Re: Nazi Treaty

      If such a treaty existed it would exist outside the Constitution since treaties between countries are considered superior, under the Constitution and in US legal precident, to the Constitution. This is why may human rights organizations are wary of UN decisions and treaties. Why is a contract between governments more important than our Constitution? Because the Constitution is a contract between the Federal government, the State governments and the people themselves. As such it has no power in the international venue and, accordingly, is considered subservient to international contracts.
      While the argument that the ratification of a UN treaty would nullify the Bill or Rights is suspect (because as defined above the Bill of Rights LISTS existing rights not GRANTS them) the people's ability to expercise those rights would no longer have the support of the US government

       

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    Rick Gutbrod, Jun 22nd, 2010 @ 10:49am

    1st Admendment amended...

    While it is targeted at digital and video properties, it goes back to all Public Domain properties, including any book in the Google Library or any other document system that might get the attention of the members of Congress. As well "respected" that Congress has any more, it is like letting used car salemen run the CarFax service. Think about it. This would include any Bible or religious literture that is in this status. Can you imagine a ban on digital copies of the Koran, or the King James Bible? It will always be used a tool to "mold" the thinking of the public. To do that, you restrict who can print the information... Hugo Chavez would vote with approval of the wisdom of keeping "dangerous" thoughts out of the people's eyesight.

     

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    Andrew F (profile), Jun 22nd, 2010 @ 11:29am

    Eldred v. Ashcroft

    The real problem isn't this case but the Supreme Court case Eldred v. Ashcroft, which held that retroactively extending copyright terms (e.g. under the Sunny Bono Act) was constitutional. This is just the logical extreme of that. Once you ignore how copyright is a "contract" between the right-holder and the public, then there's no limit to how far back you can retroactively extend copyright.

     

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    Mandamus, Jun 22nd, 2010 @ 11:31am

    redacting from public domain

    So, are you actually going to DO anything about it? or just sit and bitch about it on your blog?

     

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    onymouse, Jun 22nd, 2010 @ 11:52am

    A "Mickey Mouse" judicial

    this whole copyright/public domain thing is getting insane. it is clear that the judicial is become frivilous and incapable of sound judgement. It started with Disney illegally taking back works decades ago whose copyrights expired decades before. And now no film whose copyright expired remains in the public domain. Also, there are media coporations who want to not only take every single public domain work out of the public domain and copyright them but also want to seize and accroach the copyrights of others, especially the small authors, artists and writers. All of it generally and/or specifically prohibited by the Constitution.

    The way around the Constitution, however, is by treaties with foreign nations: The Constitution itself states that treaties are the highest law of the land, superior even to the Constitution.

    You got the Senate and Congress you wanted. Be careful what you wish for: You just might get it. Weren't you listening?

     

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    Hyman Rosen, Jun 22nd, 2010 @ 12:25pm

    Caring about the Constitution

    It's the Constitution itself which contains "Section 8 - Powers of Congress ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;". So Congress gets to set the terms of how copyright works, including retroactive changes. If you don't like it, you need to get sufficient support for your point of view to get either the law or the Constitution changed.

     

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      Anonymous Coward, Jun 22nd, 2010 @ 4:33pm

      Re: Caring about the Constitution

      "If you don't like it, you need to get sufficient support for your point of view to get either the law or the Constitution changed."

      Isn't that kinda part of the point of this blog?

       

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      David, Jun 23rd, 2010 @ 8:14pm

      Re: Caring about the Constitution

      The Constitution goes out of its way to clarify the power it gives Congress by qualifying it. Congress can give people these Monopolies only in order to promote the Progress. Now, tell me, how does retroactive copyright promote any sort of progress, when those works were already created? Not only were they created, but they were given over to the public to use and to innovate upon—which creates even more progress. Retroactively taking something out of the Public Domain very clearly de-promotes progress. It is a not something the Framers intended, nor is it power granted by the actual text of the Constitution. Simply put, it is unconstitutional—even before the First Amendment question. That you read the Constitution and came to the opposite conclusion simply boggles the mind.

       

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    Jay (profile), Jun 22nd, 2010 @ 12:27pm

    I used to think that the Judicial branch was very strong...

    Now it's weak in its definitions. Curiously, no matter the facts, there's a belief that Congress should be the supreme law of the land without any balance.

    It's like our Constitution has become forfeit to the power of 535 people representing congress.

    And those 535 are human and influenced by the money that passes through those doors.

    Sad... Just sad.

     

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      Technopolitical (profile), Jun 23rd, 2010 @ 4:33am

      Re: I used to think that the Judicial branch was very strong...

      Vote . run for office.

      Political Power ( i.e. civil rights of voting)
      unused , is power abused.

       

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    AC, Jun 22nd, 2010 @ 12:43pm

    The court has abrogated its authority.

    By failing to uphold the Constitution, and breaking his oath of office in doing so, the judge has abrogated his court's authority. Its rulings are null and void - and as American citizens, we not only have the right to ignore them, we have the duty to both ignore and and actively oppose them.

    Where the government strays from Constitutionally proscribed legitimacy, the People have the duty to rectify the illegitimate actions of the government by any means necessary.

    This principle is the very foundation of out nation.

     

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    Bobson, Jun 22nd, 2010 @ 1:04pm

    This isn't the first amendment.

    This is an EX POST FACTO law.

     

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      ohgodyoudevil, Jun 22nd, 2010 @ 2:57pm

      Re:

      Did you learn that phrase when you studied the constitution in grade school? You certainly didn't learn it well. The ex post facto clause applies only to criminal law. This has been the law of the land since 1798. Catch up or shut up.

       

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    Anonymous Coward, Jun 22nd, 2010 @ 1:14pm

    I wonder how this works with respect to foreign authors whose works remain under copyright in their countries of origin?

    I wonder how this works with respect to domestic authors whose works have since passed within the US into the public domain?

     

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    GreyGeek, Jun 22nd, 2010 @ 1:41pm

    The HEART of the problem is ...

    Congress. Regardless of party, nearly ALL members have their hands out to accept bribes (a.k.a. "Campaign Contributions"), and thus sell their office, during their 24/7/365 re-election campaign. They spend so little time working for the People that taking bribes reduces their job to one of just taking orders from the highest briber. When they retire or move over to a corporate job they convert their "war chest" to personal funds. Most Congressmen start their first term with a net worth which is usually less than $500K. By the end of their second term their network is $5M. All on less than $200K/yr.

    The only problem with replacing them is that those who can afford to run for office have an identical set of morals and ethics. We just trade one crook for another. It doesn't bode well for our country if there aren't enough hon

     

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    Scott E., Jun 22nd, 2010 @ 1:46pm

    Government's interest? Nonsense

    Copyright does not exist for the benefit of government, it exists for the temporary benefit of authors/creators. Any government benefit actually exists in the public domain material, as the government can also freely use what becomes public domain.

     

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    Justin Levine (profile), Jun 22nd, 2010 @ 3:08pm

    This Decision Blows!

    It seemed to rule on First Amendment issues, which it got wrong in my (correct) opinion.

    Though I wonder if there still might be room to continue a challenge based on either the Contracts clause or Takings clause of the constitution.

    The Takings clause argument might be a two-edged sword in this instance, since it might inadvertently encourage courts to accept the false analogy between IP and real property, but it is still a long-shot legal avenue to consider in trying to overturn this turd of a ruling.

     

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    anigbrowl, Jun 22nd, 2010 @ 6:02pm

    I wonder how many people have thought this through

    I'm really not in favor of the copyright lobby. But there are some fundamental points that nobody has paid any attention to...for brevity, let me do this as a simple Q & A.

    Why did the US extend copyright protection to work that was in the public domain? Because to get foreign countries (in this case, Russia) to recognize and enforce our copyrights, we had to recognize theirs.

    But copyright seems so unfair? It does, right up until you're the person whose book or music or movie is getting ripped off on an industrial scale. That's why copyright exists to begin with - it doesn't mean all works can or should be copyrighted forever.

    But this was in the public domain - isn't that *exactly* the problem of copyrighting things forever? Er...no. The case was about the music of Russian composer Shostakovic. He dies in 1975. In any other country his works would be automatically protected for a reasonable length of time, and would never have fallen into the public domain in the first place.

    Well how did his work end up in the public domain? Because Shostakovic lived and died when russia was still part of the Soviet Union. Being communist, the soviet government had no interest in things like copyright treaties, but considered all creative work to be the property of the state. Unsurprisingly, the US had no truck with this and so Shostakovic's work was not eligible for US copyright protection in the first place.

    So why is it now? Because Russia is not communist anymore, but has actually signed the same copyright treaties we have. And they have implemented the same policies as most of the rest of the world about copyright - life + 70 years.

    Why should we care? Because if we don't respect their laws, we're basically saying that Soviet laws passed under communism should take priority over international treaties that the US has signed, which makes no sense at all.

    You might or might not agree with the basic concept of copyright, but the constitution itself provides that there should be *some* level of protection. 35 years (since Shostakovic died) would not be considered a very long or unreasonable length of copyright by most people. This case has nothing to do with length of copyright terms. It only exists because the weird historical situation with Communism meant we had no reason to worry about Russian copyrights at all under after 1992, and then we just ignored the problem for a long time until the Russian government pointed out that it was unfair of the US to treat their copyrights differently from our own.

    There is nothing really wrong with this ruling if you read it carefully: it was a poor choice of battle for copyright reformers. And no, I don't work for the RIAA or anything even remotely similar. I just read the opinion carefully and then looked up Shostakovic on Wikipedia to see how long he'd been dead.

     

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      Anonymous Coward, Jun 22nd, 2010 @ 6:16pm

      Re: I wonder how many people have thought this through

      "But copyright seems so unfair? It does, right up until you're the person whose book or music or movie is getting ripped off on an industrial scale."

      But such reuse is not ripping me off, I have no right to prevent others from making their own copies of a work I made the original copy of. That would be a monopoly, which is why the constitution allow copyright only for a limited time and only for the public good.



      "Because if we don't respect their laws, we're basically saying that Soviet laws passed under communism should take priority over international treaties that the US has signed, which makes no sense at all."

      Except That's not what we're saying at all. We're saying that once the pubic has been granted back their natural right to copy it is wrong to take it away again through retroactive copyright.


      "You might or might not agree with the basic concept of copyright, but the constitution itself provides that there should be *some* level of protection."

      the constitution allows copyright, it does not mandate it.

       

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      Anonymous Coward, Jun 22nd, 2010 @ 8:10pm

      Re: I wonder how many people have thought this through

      It is terribly impolite to enter into a conversation armed with a familiarity of the issues that were actually involved and presented to the court.

      I have to wonder just how many indignant posts were made without the person realizing that the issue here involved the works of foreign authors.

       

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        Anonymous Coward, Jun 22nd, 2010 @ 8:29pm

        Re: Re: I wonder how many people have thought this through

        "I have to wonder just how many indignant posts were made without the person realizing that the issue here involved the works of foreign authors."

        I don't see how that's even possible since that's a good chunk of what mike's post deals with.

        Then again, you seem to fail to see the actual issue yourself.

         

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          Anonymous Coward, Jun 22nd, 2010 @ 9:08pm

          Re: Re: Re: I wonder how many people have thought this through

          It seems your definition of "good chunk" and mine are miles apart. The article makes a miniscule passing mention, and does so in a manner that can easily be misunderstood.

          From there the article launches into yet another all too familiar argument having as its premise "I (i.e., the article's author) know the law, something that appellate judges who disagree with me happen to lack."

          It is one thing for the author to say "I have a strong grasp of economics." It is quite another for the author to say "I have a strong grasp of law, both statutory and common law." Comments and opinions associated with the former do carry weight and deserve studied attention. Comments and opinions associated with the latter are quite the opposite.

          Moreover, even a cursory glance at my comment reveals it was directed to many (if not most) of those making posts in response to the article.

          It seems only a very few (see, e.g., 91 above) actually understand the issue and the competing positions that were attempted to be balanced during legislative deliberations.

           

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      Mike Masnick (profile), Jun 22nd, 2010 @ 11:47pm

      Re: I wonder how many people have thought this through

      But copyright seems so unfair? It does, right up until you're the person whose book or music or movie is getting ripped off on an industrial scale. That's why copyright exists to begin with - it doesn't mean all works can or should be copyrighted forever.

      This is incorrect. Copyright exists as an incentive to create. The fact that those given monopolies like them is meaningless. The question -- the ONLY question -- is whether or not it actually creates incentive to create.

      Er...no. The case was about the music of Russian composer Shostakovic. He dies in 1975. In any other country his works would be automatically protected for a reasonable length of time, and would never have fallen into the public domain in the first place.

      Interesting definition of "reasonable." But you are actually making a moral judgment. If we go back to what copyright law used to be, his works absolutely would have fallen into the public domain. Was Thomas Jefferson not "reasonable"?

      Because if we don't respect their laws, we're basically saying that Soviet laws passed under communism should take priority over international treaties that the US has signed, which makes no sense at all.

      That is not actually accurate. What it is saying is that content that was created under the deal at the time (and, remember, copyright is a deal between the public and the content creators) should stand. What you are arguing for is that it is ok for the government to unilaterally change the deal.

      But copyright is designed as an incentive to create. This content was created *without* the benefit of copyright. Thus, it needs no more incentive, and retroactively putting copyright on it makes no sense under the basics of copyright law. None at all.

      So, no, it's not about saying laws passed under communism take priority. It's saying that the rules in place when the content was created (i.e., the *agreement* struck at the time between the public and the content creator) should stand.

      35 years (since Shostakovic died) would not be considered a very long or unreasonable length of copyright by most people.

      When US copyright law first came into place, 35 years would be considered quite long and quite unreasonable. So I don't see where you get your unequivocal claim of it not being long or unreasonable.

      This case has nothing to do with length of copyright terms.

      Well, it does, indirectly, but I will agree it is a side point.

      There is nothing really wrong with this ruling if you read it carefully

      I disagree quite strongly.

      it was a poor choice of battle for copyright reformers.

      Again, I disagree. The poor reasoning in the Eldred decision created a tough hurdle for copyright reformers: to find *any* example of Congress changing the traditional contours of copyright law. This seemed like a perfect example, which is important. Tragically this court has disagreed, and we are again left with a situation where it appears that courts have decided that the limitations on copyright law are meaningless if Congress gets enough campaign contributions from the entertainment industry.

       

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        Technopolitical (profile), Jun 23rd, 2010 @ 3:46am

        The question -- the ONLY question -- is whether or not it actually creates incentive to create.

        MIKE : The question -- the ONLY question -- is whether or not it actually creates incentive to create.

        Me : WRONG !
        The only question is the law !!, And how to make sure all follow it -- to protect fully the "ARTISTs Rights" -- copyrights -- of use of their work.

        Economics is meaningless when talking ART .

        Copyrights is all about "Artist control" of their IP.

         

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          Anonymous Coward, Jun 23rd, 2010 @ 4:25am

          Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

          You are wrong again technodiddler

           

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            Technopolitical (profile), Jun 23rd, 2010 @ 4:37am

            Re: Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

            except SCOTUS agrees with me .

             

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          identicon
          Anonymous Coward, Jun 23rd, 2010 @ 1:00pm

          Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

          "Copyrights is all about "Artist control" of their IP."

          The supreme court begs to differ.

          Fox film vs doyle(the court on copyright):
          "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors."


          So I wonder how you think you're more knowledgeable about copyright than the guys who govern such laws?

           

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            Technopolitical (profile), Jun 23rd, 2010 @ 1:17pm

            Re: Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

            Fox film vs doyle(the court on copyright):
            "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." --+++ by granting complete artistic control to creators.++++

            Logic .

             

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              Anonymous Coward, Jun 23rd, 2010 @ 2:04pm

              Re: Re: Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

              Your logic is flawed. You said copyright is "all about" giving control to artists, but here it is shown that the only reason artists are given any control is for public benefit. Therefor proving you wrong. Add to that fair use, which means that they specifically do not have complete control.

               

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                identicon
                Anonymous Coward, Jun 23rd, 2010 @ 2:16pm

                Re: Re: Re: Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

                sdfaf

                 

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                Technopolitical (profile), Jun 23rd, 2010 @ 2:21pm

                Copyright Basics & Requesting Information Purpose of Copyright LawRe: Re: Re: Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

                ~` technically we are both right in theory ,, but yhr Pratise is in the Artist control. ( "fair use" is fair ,, and never "complete use ", ---but for educational purpose)

                http://www.lib.byu.edu/departs/copyright/tutorial/module1/page3.htm

                Module 1 Copyright Basics & Requesting Information
                Purpose of Copyright Law

                The primary purpose of copyright law is not so much to protect the interests of the authors/creators, but rather to promote the progress of science and the useful arts—that is—knowledge.

                To accomplish this purpose, copyright ownership encourages authors/creators in their efforts by granting them a temporary monopoly, or ownership of exclusive rights for a specified length of time.

                However, this monopoly is somewhat limited when it conflicts with an overriding public interest, such as encouraging new creative and intellectual works, or the necessity for some members of the public to make a single copy of a work for non profit, educational purposes. You will be learning more about how this works in the next modules.

                In addition to balancing the public and individual rights, you need a basic understanding of copyright law before you can make appropriate decisions regarding any proposed use of copyrighted material.

                When thinking about the possible use of copyrighted material, keep in mind the perspectives of both the owner and the user of copyrighted material. When using another person’s material, ask yourself: “What kind of respect and observance of copyright law would I want others to follow?”

                Likewise, “If I am about to use someone else’s copyrighted works, what kind of respect and observance of copyright laws should I follow?” This approach suggests attention to the principles of respect and trust. Respect for the rights of others and trust in those who have an opportunity to use your works.

                Be aware that mere ownership of a book, manuscript, painting, or any other copy of a copyrighted work does not automatically grant you copyright ownership.

                In summary, some important points to remember:

                * The authority to establish Copyright Law comes from the US Constitution, Article 1, Section 8.
                * One major purpose of Copyright Law is to “promote the progress of the sciences and useful arts”, in other words knowledge.
                * Copyright law is an attempt to balance public interest with the rights of the individual author/creator.

                http://www.lib.byu.edu/departs/copyright/tutorial/module1/page3.htm

                 

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                  Anonymous Coward, Jun 23rd, 2010 @ 5:38pm

                  Re: Copyright Basics & Requesting Information Purpose of Copyright LawRe: Re: Re: Re: The question -- the ONLY question -- is whether or not it actually creates incentive to create.

                  "technically we are both right in theory"

                  No, you're just wrong. Copyright's purpose is clearly not for securing complete control for artists, instead such monopolies are merely a means to an entirely different end. This makes your statement that copyright being "all about" securing control for artists wrong, even though artists having some control is part of the plan.

                   

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        Technopolitical (profile), Jun 23rd, 2010 @ 4:59am

        copyright law are meaningless if Congress gets enough campaign contributions from the entertainment industry.

        Mike: "copyright law are meaningless if Congress gets enough campaign contributions from the entertainment industry."

        ME: "campaign contributions from the entertainment industry" is "spit in a bucket" compared to what Big OIL, Big Pharm, Big Banks , and big Auto , give in campaign contributions .

         

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        Gramps, Jun 23rd, 2010 @ 7:31am

        Re: Re: I wonder how many people have thought this through

        I do not agree with Mike but he is correct in one issue, this is not about Constitutional law. It is about international law. As discussed above, international treaties override the Constitution and Federal (state and local for that matter) legislation.
        If Mike is correct in that the decision is in line with international treaties but the decision was still inane because of the justification even if the end point would end up the same.

         

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          Technopolitical (profile), Jun 23rd, 2010 @ 8:10am

          this is not about Constitutional law. It is about international law. As discussed above, international treaties override the Constitution and Federal (state and local for that matter) legislation.

          YOU :"this is not about Constitutional law. It is about international law. As discussed above, international treaties override the Constitution and Federal (state and local for that matter) legislation."

          Me : Point of INFO : Treaties MUST be confirm by the US Senate. Treaties cannot diminish our constitutional rights.

          Which is why the Senate ( mostly right -wing) gets huffy on War Crimes Treaties.

           

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        Technopolitical (profile), Jun 23rd, 2010 @ 8:56am

        What you are arguing for is that it is ok for the government to unilaterally change the deal.

        MIKE : "What you are arguing for is that it is ok for the government to unilaterally change the deal."

        ME : Yes.

        On copyrights and on most other "social contracts" too-- as long as it is a "Constitutionally Permitted Action" as determined by the Courts/ SCOTUS

         

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    tnc, Jun 22nd, 2010 @ 6:11pm

    Which part? Let me tell you.

    Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?

    The part that conflicts with substantial or important corporate interest, err, I mean "substantial or important government interest" (same thing), of course.

    And the people generally don't care.

     

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    Wastrel (profile), Jun 22nd, 2010 @ 7:44pm

    Copy right trumps First Amendment every time. Always has. Get used to it. That said, our Congress is to blame for the 'Mickey Mouse' law that extended the copyright on thousands of works by American authors that would otherwise be in the public domain now. That was a crime.

     

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      Anonymous Coward, Jun 22nd, 2010 @ 8:24pm

      Re:

      The sad thing is that's ass backwards. free speech is a right which is supposed to be guaranteed, copyright law is an exception for the public domain that the government doesn't even have to grant.

       

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    Michael Z. Williamson, Jun 22nd, 2010 @ 8:25pm

    Unbelievable.

    Let's start with some basic facts:

    I make my living as a writer.
    Many nations don't respect IP at all.
    I give a LOT of content away for free, by choice, for promotional purposes.

    Regarding the latter, it's by MY CHOICE. My art, my choice what I do with it.
    Regarding the second, it's generally not worth trying to track down settlements or royalties from the third world. But, if their governments are agreeable to some enforcement, I don't mind.

    Regarding the former, the "copyright-free model" morons are exactly that--morons who are incapable of creative development themselves, eager to get their hands on my creative works, and willing to denigrate them to that end.

    If (c) isn't important or useful, why are you so eager to get your hands on my work, a product of my labor and thought, for free? Should I be able to get you to mow my lawn for free? What about fix my car? Pay my mortgage?

    There are two types of people in this equation. Those capable of creating ideas, and those capable of performing manual labor. I pay the people who perform labor for their physical work. I get paid for my intellectual work. I choose, sometimes, to give it away for free. I choose, at other times, to get paid for it. You don't get to make that choice for me. Unless, of course, I get to make the choice of what work YOU do for free, to "benefit society."

    US Constitution, Art 1, Sec 8, Para 8:
    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    Specific authority of Congress. As most of us learned in fifth grade, Congress has POWERS enumerated to it by the Constitution (As do the Courts and Executive). Those powers not enumerated are not supposed to exist. However, powers specifically enumerated do, and that is one of them. The First Amendment affirms specifically some enumerated rights. Rights not enumerated are presumed, and stated in Amendments 9 and 10, to be reserved to the States, and to the People, respectively.

    So, summary for whining socialists and morons: Copyright IS VERY CONSTITUTIONAL, is specifically enumerated.

    Should there be limits on how long something is under protection? Yes. In fact, the Constitution states so.

    This is not the first time something has come back under (c). Every time the Mouse (Mickey) gets close to PD, Disney unleashes a barrage of lawyers to increase the duration. That's wrong.

    But the stuff I write, as long as I'm alive, is absolutely MY property, not yours.

    Don't like it? Feel free to write something better.

    The reason you're whining, and so eager to get hold of my creative output? You know you can't do better.

    I suggest, then, that you mow a few more lawns, serve a few more burgers, haul a little more trash, and save your pennies.

    Because, as the comments above, and the internet in general proves, anything you get free is worth what you pay for it.

     

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      Anonymous Coward, Jun 22nd, 2010 @ 8:42pm

      Re: Unbelievable.

      "Regarding the former, the "copyright-free model" morons are exactly that--morons who are incapable of creative development themselves, eager to get their hands on my creative works, and willing to denigrate them to that end"

      So the artists who don't believe in copyright and think it should be abolished say that.... so they can get their hands on their own creative works. wait, what?


      "There are two types of people in this equation. Those capable of creating ideas, and those capable of performing manual labor. I pay the people who perform labor for their physical work. I get paid for my intellectual work. I choose, sometimes, to give it away for free. I choose, at other times, to get paid for it. You don't get to make that choice for me. Unless, of course, I get to make the choice of what work YOU do for free, to "benefit society."

      If you can't make money as an artist/programmer without a monopoly then find a different line of work. Nobody forces you to make anything. I for example am paid to do Linux kernel development, a nice project whose code can and is freely redistributed.

      "So, summary for whining socialists and morons: Copyright IS VERY CONSTITUTIONAL, is specifically enumerated."

      However, it is allowed for society's benefit and not the artist, and is limited specifically because it is a monopoly privateness and not a property right.

       

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        identicon
        Anonymous Coward, Jun 22nd, 2010 @ 8:45pm

        Re: Re: Unbelievable.

        Oops. I meant monopoly privilege, not privateness!

         

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        Ccomp5950 (profile), Jun 23rd, 2010 @ 1:27am

        Re: Re: Unbelievable.

        "14 years ought to be enough"* a whole slew of intelligent individuals who probably knew and conversed daily with the founding fathers.

        *Also: Copyright law in 1790

         

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      nasch (profile), Jun 23rd, 2010 @ 11:40am

      Re: Unbelievable.

      If (c) isn't important or useful, why are you so eager to get your hands on my work, a product of my labor and thought, for free?

      First of all, you should be delighted if anyone is eager to get their hands on your work at all. Second, different people want it for free for different reasons. Some probably want it for free because they understand that it costs nothing to make a copy, which is all they're doing.

      Should I be able to get you to mow my lawn for free? What about fix my car? Pay my mortgage?

      Are you asking people up front to pay you to perform a song? Or are you asking them to pay for a copy of the song you're already recorded, rather than getting it from someone who isn't asking for money? If it's the former, then you're getting wronged. If it's the latter, then the situation is not analogous.

      I get paid for my intellectual work.

      It sounds like you actually want to get paid for distributing copies of files, which is not the same thing.

      Unless, of course, I get to make the choice of what work YOU do for free, to "benefit society."

      If you can copy my lawnmowing (or whatever) at no cost to me and sell it, go for it.

      But the stuff I write, as long as I'm alive, is absolutely MY property, not yours.

      You're mistaken there, it's not property at all. That is, a copy of a book is property. But when I buy that book, that property is MINE, not yours. And the writing in the book, the words, the stuff that's copyrighted - the expression - is not property. You have specific privileges with regard to copying that expression, but you don't own it. You can sell the privileges, for example, but you can't sell the creation itself.

      The reason you're whining, and so eager to get hold of my creative output? You know you can't do better.

      Personally, I have no interest in your creative output, even for free.

      I suggest, then, that you mow a few more lawns, serve a few more burgers, haul a little more trash, and save your pennies.

      Actually I get paid for producing copyrightable works. I don't hold the copyright to them. I don't get paid for copies of the works, I get paid to produce them. It works out great.

      Because, as the comments above, and the internet in general proves, anything you get free is worth what you pay for it.

      I don't think you even believe this, or you wouldn't visit any web sites that don't charge you money. Or do anything else that's free either. Free concert in the park? Must be worthless, right? Free sample at the grocery store? Worth every penny. Taking a walk with your lovely significant other? It's free? Forget it, not worth anything. Free air? Bah, don't want it, I'll go find somewhere to pay for my air.

      Price is not the same thing as value. In fact, in many instances on the internet your equation is backwards. If your work is available for free via piracy, it might be worth something. If nobody has thought your work is even worth putting on a file sharing network, it probably isn't worth anything.

       

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    Technopolitical (profile), Jun 23rd, 2010 @ 3:58am

    copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it s

    MIKE : [C]opyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense.

    ME : Only to a Pirate does this not make sense.

    Mike you live in the Dark Side.

    The Copyright Jedis will get you --
    in court EVERY TIME.

     

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      identicon
      Anonymous Coward, Jun 23rd, 2010 @ 1:02pm

      Re: copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as

      You liken monopolists to jedis? Now I know you be trollin'.

       

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        Technopolitical (profile), Jun 23rd, 2010 @ 3:14pm

        Re: Re: copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long

        Now I know you be trollin'

        while your rollin'

        midnite smokin'

        just a loser on the run ..

        Just a space cowboy

        But I ain't cheatin' no one !!!!
        --------------------------

        ( apologies to Steve Miller)

         

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    Technopolitical (profile), Jun 23rd, 2010 @ 4:05am

    Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?

    MIKE : "Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand? "

    Me : free speech is not absolute.

    i.e.:

    * Yelling "fire" in a movie theater .

    * Liable

    * UN-Truth in Political advertising . ( debatable , to what extent)

    * Jokes about bombs in Airports and "public arenas" .

    * threatening POTUS w/ violence.

    * Stealing Copyrighted works outside of "Fair Use".

    All very limited speech.
    -------------
    =======================

    *

     

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      identicon
      Anonymous Coward, Jun 23rd, 2010 @ 4:50am

      Re: Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?

      "All very limited speech."
      I agree, very few people yell "fire" in a movie theater.
      But they can if they want.

       

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        Technopolitical (profile), Jun 23rd, 2010 @ 5:01am

        I agree, very few people yell "fire" in a movie theater. But they can if they want.Re: Re: Which part of "Congress shall make no law... abridging the freedom of speech" does this court not understand?

        I agree, very few people yell "fire" in a movie theater.
        But they can if they want TO GET ARRESTED.

         

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    identicon
    Tom, Jun 23rd, 2010 @ 9:33am

    Not enough info

    What is the original case about? What items where in the public domain and now are not?

     

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    Jeffrey A. Williams, Jun 23rd, 2010 @ 1:57pm

    Congress needs public oversight

    Seems to me that our congress needs all the oversight that the public can or is willing to provide given the text of this decision. Circumventing First Amendment in this manner
    is particularly offensive and I for one certainly hope that this Appeals court decision is further appealed accordingly!

     

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    identicon
    Gernot, Jun 23rd, 2010 @ 4:17pm

    comment

    copyright was yesterday, today is live, life is today ....

     

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    identicon
    Anonymous Coward, Jun 24th, 2010 @ 6:05am

    "In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain."

    This seems to somewhat contradict the doctrine of promissory estoppel.

    http://legal-dictionary.thefreedictionary.com/Promissory+Estoppel

    The government made a promise, that these works are in the public domain

    Artists and people relied. They invested time and effort (and potentially money) in their reliance on this promise.

    Not keeping the promise is an undue detriment to those who relied.

     

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    identicon
    Anonymous Coward, Jun 27th, 2010 @ 4:19pm

    Because if the content is not later copyright it might be uncreated.

     

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