When You Realize That Copyright Law Violates Free Speech Rights, You Begin To Recognize The Problems...

from the shall-make-no-law dept

We've pointed out repeatedly in the past the problems you run into with copyright law once you realize that, fundamentally, it violates the First Amendment. While courts have tried to get around this simple fact with convoluted reasoning, and claims that fair use and the (often ignored) idea/expression dichotomy, if you are being intellectually honest, at some point, you need to admit that copyright law and free speech are in conflict. Now, that said, it's perfectly reasonable to then claim that this is an area where it's reasonable to make exceptions to free speech, but I would think that would require a pretty strong burden of proof -- one we have yet to see. I've recommended it before, but an excellent book on this subject is the book No Law, by David Lange and Jefferson Powell, where they spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment, and that courts who have claimed otherwise have been wrong as a matter of law (the second half of the book then explains how copyright law can still exist with massive changes -- effectively a compulsory licensing solution, that I don't think makes much sense). Neil Netanel's Copyright's Paradox is also an excellent examination of the topic.

But, of course, these scholarly books often don't convince people who dismiss "academics" as not understanding the real world. Yet, the more you look, the more you see how it's out there in the real world that copyright law is regularly used to suppress speech and create serious chilling effects on speech. The recent example of Russia using copyright law to suppress dissent among civil society groups critical of the government is only one example. We've suggested, repeatedly, that the US's policy of pushing our copyright and patent laws on foreign countries is a huge mistake, which they don't comprehend. That's because they don't realize that these laws are, fundamentally, about restrictions on speech and on actions -- and handing such tools to oppressive governments, and believing that they'll actually be used to protect content creators or inventors is fundamentally naive and dangerous. We're starting to see it in China as well, where patent laws have been used to attack foreign companies in the aid of domestic firms. Copyright law has also been abused this way in China with "crackdowns" on "piracy" often being used to make Americans look bad.

And, really, this is just the beginning. As these oppressive governments realize the power of using these laws (pushed on them by American diplomats) for their own corrupt political purposes, these sorts of activities will only increase in both number and severity. Not just handing oppressive regimes these tools, but demanding they use them, is so incredibly short-sighted, it's amazing that US diplomats haven't already realized the problems involved.

Hopefully, the situation in Russia serves as at least some kind of wake-up call. Some are pointing out the seriousness of the situation, and noting that it's no one-off misuse case, either. Michael Geist has highlighted how things like ACTA and the USTR's Special 301 report are all about exporting these tools, without the careful balances that try to keep them from suppressing free speech. He notes that this isn't just Russia being Russia, but a direct end result of US pressure:
The US has regularly cited Russia in its Special 301 report, this year including it on the Priority Watch list.  The IIPA, the industry lobby group that includes software associations, pushed the U.S. to target Russia, saying that is imperative that prosecutors bring more IPR cases.  In fact, the IIPA complained that Russian authorities do not seize enough computers when conducting raids.  On top of all this is the Anti-Counterfeiting Trade Agreement, which will provide Russia with a template to follow on IP enforcement, including new seizure powers with less court oversight. 

It has often been pointed out that the ACTA/Special 301 report approach seeks to export tougher enforcement measures - often to countries where free speech is not a given - without including the exceptions, due process, and balancing provisions. The recent Russian case highlights why this is such a dangerous and misguided approach that is apt to cause more problems than it solves.
Richard Esguerra is making a similar point for the EFF, noting that these sorts of actions in Russia are the direct end result of US diplomatic pressure, often coming from a few key industries, where those involved are naive about how such laws can and will be misused to suppress speech:
But this issue isn't limited to Microsoft or to software. A sprawling, powerful group-of-groups in the content industry, including movie and music industry lobbyists, software companies, and others, is constantly demanding that governments worldwide be given new powers to search for and seize allegedly pirated materials, and that those governments should act on those powers forcefully. In the name of copyright enforcement, the lobby shortsightedly demands provisions that put human rights at risk throughout the world: the power for governments to censor parts of the Internet with so-called copyright filtering, power for governments' border agents to search travelers' goods for "infringing" items, power for governments to detain alleged infringers pre-trial.

If the copyright lobby gets their way with the Anti-Counterfeiting Trade Agreement (ACTA) or if governments continue to act on the claim that "piracy" demands sweeping changes to Internet privacy and freedom, then we can generalize the New York Times headline -- "Russia Uses Microsoft to Suppress Dissent" -- into something we'll surely see more often: "Regime Uses Copyright Violations to Curtail Freedoms."

This episode should remind legislators and policymakers worldwide of the real risk that powers enacted in the name of copyright enforcement can to be used to do real harm. Ensuring balance in copyright law is not just good copyright policy -- it's necessary to protect human rights and fundamental freedoms worldwide.

Lawyer Denise Howell has a similar warning, especially as we head into ACTA's home stretch:
This story seems particularly timely given that finalization of the Anti-Counterfeiting Trade Agreement (ACTA) is imminent. Even without ACTA, a government in search of a pretext has all the tools it needs to ransack or seize computers in the name of protecting foreign copyright holders. ACTA promises to provide a whole new legal infrastructure and justification for such tactics, in addition to the myriad concerns it raises simply if enforced in a non-corrupt, as-intended manner.
Finally, Glyn Moody points us to Jim Killock's analysis that highlights many more cases of copyright being used to stifle free speech:
Over in Mexico, environmental protesters are apparently also being attacked through copyright to censor their materials. A Youtube video was apparently temporarily taken down as the result of a regional government complaining their copyright had been violated by reproducing their animation of a planned highway....
Copyright law and free speech are fundamentally in conflict. It bears repeating, because most of those pushing for things like ACTA simply do not recognize this simple fact -- and when they then try to export the expression suppressing parts of copyright law without the all important exceptions and guarantees of free speech, it should come as no surprise, at all, that governments use the law the US pushed on them to suppress speech and dissent. What is not acceptable is for US policy makers to continue to ignore this key point.


Reader Comments (rss)

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  1.  
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    Dark Helmet (profile), Sep 15th, 2010 @ 8:01am

    Why...

    Do you assume they're ignoring it? We know they aren't stupid. Occam's Razor would suggest that these are the exact outcomes they were shooting for....

     

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    Crosbie Fitch (profile), Sep 15th, 2010 @ 8:17am

    The Constitution is nevertheless consistent

    Copyright (the re-enactment of the Statute of Anne in the US in 1790) does indeed conflict with the right to free speech.

    However, as I've tried to explain to you before, Mike, the 'progress' clause does not conflict.

    People are naturally at liberty to copy or communicate any speech or intellectual work that they are in legitimate possession of.

    Authors have a natural right to exclude others from their writings (in their possession) - because others are NOT in possession of them (must commit burglary in order to obtain them).

    This is why the author's exclusive right to their writings does not conflict with any other individual's freedom of speech.

    Copyright, on the other hand, says that even if an individual is in rightful possession or receipt of a covered work they still cannot copy or communicate it (even within the privacy of their own home). That's why the privilege of copyright is fundamentally unethical, an anachronistic instrument of injustice that should have been abolished along with slavery.

     

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  3.  
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    Nina Paley (profile), Sep 15th, 2010 @ 8:34am

    The "balance" delusion

    Too many copyright reformers use language like Richard Esguerra's: Ensuring balance in copyright law is not just good copyright policy -- it's necessary to protect human rights and fundamental freedoms worldwide.

    There is no "balance." "Balance" is one of those awful copyright weasel words like "theft." "Balance" implies that creators and audiences are in opposition with each other, when nothing could be further from the truth. There is no "balancing creators' rights with public freedoms." They are the SAME freedoms. Freedom should outweigh oppression, always; the only way to "balance" them is to rig the scale.

     

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  4.  
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    Hyman Rosen, Sep 15th, 2010 @ 8:34am

    Copyright vs.1st Amendment

    Because copyright is directly authorized within the Constitution, it is not relevant as a matter of law if it conflicts with the First Amendment.

     

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    BBT, Sep 15th, 2010 @ 8:38am

    Re: Copyright vs.1st Amendment

    Technically, a rather silly argument could be made that since amendments alter the Constitution, they take precedence, and thus the 1st Amendment renders the copyright clause obsolete, much like the amendment ending prohibition rendered the amendment instituting prohibition obsolete.

     

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  6.  
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    Dark Helmet (profile), Sep 15th, 2010 @ 8:39am

    Re: Copyright vs.1st Amendment

    Because prohibition was repealed by a later clause in the Constitution, it is not relevant as a matter of law if it conflicts with the clause putting it in place. Therfore, we both have and don't have prohibition in this country.

    Wait....

     

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  7.  
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    average_joe (profile), Sep 15th, 2010 @ 8:59am

    We've pointed out repeatedly in the past the problems you run into with copyright law once you realize that, fundamentally, it violates the First Amendment.

    Meh. You do realize that the Copyright Clause was in the Constitution before the First Amendment was added, don't you? It would make more sense to say the First Amendment violates the Copyright Clause. We both know you'd never say that, though.

    Fact is, they are both in the Constitution, and they are both to be interpreted in light of each other. You guessed it--balance. I don't know why that word is so taboo around here. ;)

     

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  8.  
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    average_joe (profile), Sep 15th, 2010 @ 9:00am

    Re: The "balance" delusion

    The law is all about balance, Nina. And that's a good thing. :)

     

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    Michael, Sep 15th, 2010 @ 9:08am

    Re: Why...

    I have to reject your assumption.

     

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  10.  
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    Michael, Sep 15th, 2010 @ 9:10am

    Re: Re: Copyright vs.1st Amendment

    I need a drink after reading that argument.

     

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  11.  
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    Anonymous Coward, Sep 15th, 2010 @ 9:12am

    Re: Re: The "balance" delusion

    How is lengthy copyright seen as a balance?

     

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    Michael, Sep 15th, 2010 @ 9:12am

    Re:

    This was being joked about above, but you seem to be serious.

    The amendments, by definition, alter the previously existing constitutional rights. The latest amendment, when dealing with conflicts, takes precedence.

     

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    Anonymous Coward, Sep 15th, 2010 @ 9:13am

    Re:

    Because the balance is so far in the one direction . . . .

     

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    Dark Helmet (profile), Sep 15th, 2010 @ 9:20am

    Re: Re: Re: Copyright vs.1st Amendment

    Me too. Why don't we crack open a nice Blue Moon with an orange and toast the end of culture together....

     

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    average_joe (profile), Sep 15th, 2010 @ 9:20am

    Re: Re:

    The amendments, by definition, alter the previously existing constitutional rights. The latest amendment, when dealing with conflicts, takes precedence.

    That is absolutely untrue. You apparently completely made that up. Nice try though. I guarantee you cannot support that assertion.

    The Supreme Court is on record as saying the two stand equal and have to be interpreted in light of each other. That much seems self evident to me.

     

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  16.  
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    average_joe (profile), Sep 15th, 2010 @ 9:21am

    Re: Re: Re: The "balance" delusion

    Ask Congress.

     

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    Anon, Sep 15th, 2010 @ 9:23am

    Re:

    You've got it backwards. You use amendments to modify original statements or documentation.

     

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  18.  
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    Dark Helmet (profile), Sep 15th, 2010 @ 9:28am

    Re: Re: Re: Re: The "balance" delusion

    Hey Congress, you want to way in on this?

    -Hello, you've reached the United States Congress. Unfortunately, all representatives are currently busy counting lobbying donations. Please leave a message and we will it ignore it as soon as we can. Thank you!-

     

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  19.  
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    Marcus Carab (profile), Sep 15th, 2010 @ 9:29am

    Re: Why...

    How does Occam's Razor suggest that?

    Besides, Hanlon's Razor suggests the opposite...

     

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  20.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 9:29am

    Re: The "balance" delusion

    The argument for 'balance' is also known as the logical fallacy of 'appeal to moderation', i.e. that extremism is by nature invalid and justice always to be found as a happy medium.

    No doubt those who called for abolition of slavery could be rejected on the same basis, that the correct approach to growing disquiet in the cotton fields would have been most appropriately addressed by finding balance between the farmers' labour needs and their slaves' need for better living conditions.

    At the end of the day individuals have a natural liberty to share and build upon mankind's culture. The question is whether the state should place the demands of its wealthy publishing corporations over and above the natural rights of its citizens. It's not a balance. It's copyright or abolition. Like pregnancy (no such thing as 'slightly pregnant'), either people are at liberty to make copies of what they have or they are not.

     

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  21.  
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    coldbrew, Sep 15th, 2010 @ 9:31am

    Re: Re: Re:

    While you may be smart and intelligent, your appeals to authority are irritating. As far as I can tell, you simply have no class. Argue all you want about details, but the fact remains you like this technical bullshit because you aspire to profit from it.

    Why do you want to prop up the same bullshit that put your family in the lower class in the first place? It's like poor people that love Palin. Divide and conquer.

     

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  22.  
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    Dark Helmet (profile), Sep 15th, 2010 @ 9:31am

    Re: Re: Why...

    Well, I was going with the whole simplest explanation theory....

     

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  23.  
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    Dark Helmet (profile), Sep 15th, 2010 @ 9:33am

    Re: Re: Re: Re: Re: The "balance" delusion

    "you want to way in on this?"

    Facepalm!

    *weigh*

     

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  24.  
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    Anonymous Coward, Sep 15th, 2010 @ 9:41am

    Re: Re: The "balance" delusion

    > No doubt those who called for abolition of slavery could be rejected on the same basis [...]

    Bad example. You are not being extreme enough. "Free all slaves" is not extreme. "Kill all slave owners" is extreme. "Bomb all countries which have slavery, and salt their earth so nothing grows on them anymore" is even more extreme. If anything, the abolition of slavery is the happy medium.

     

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  25.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 9:45am

    Re: Re: Re: The "balance" delusion

    So, I can leave you to persuade copyright reformists that the abolition of copyright is the happy medium?

    Excellent.

     

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  26.  
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    JEDIDIAH, Sep 15th, 2010 @ 9:48am

    Re: Re: The "balance" delusion

    > The law is all about balance, Nina

    Yes: because one movie studio suing another movie studio for ideas created in an entirely different country is "balance".

    Like the other person said...

    >> There is no "balancing creators' rights with public freedoms." They are the SAME freedoms.

    Any reasonably cultured person understands this and can even take you back through the "chain of custody".

     

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  27.  
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    Marcus Carab (profile), Sep 15th, 2010 @ 9:54am

    Re: Re: Re: Why...

    Isn't stupidity a simpler explanation than conspiracy?

     

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  28.  
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    Anonymous Coward, Sep 15th, 2010 @ 9:56am

    Re: The Constitution is nevertheless consistent

    If you ever come across any support for your proposition that the "progress clause" means what you say, I'd be interested to see it.

    When I've seen you post this before, you have just said that it must be so, since you are limiting all possibilities of what the Constitution means to your conception of "natural law."

    I don't believe that is an "explanation" as much as just saying something is so.

     

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  29.  
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    Anonymous Coward, Sep 15th, 2010 @ 9:58am

    The problem with copyright is that it is a commercial concept and free speech is not. I feel that, in and of itself, makes free speech a much broader and more important concept of personal protection that should trump copyright in all cases, save where it is found that a person used another's copyright to exact money; which rightfully belongs to the rightsholders, if any is to be made at all.

    Unless the so-called infringement of a given work is also commercial in nature, then there is no reason to protect the work in question because the author's or rightsholder's commercial value which copyright is designed to protect is not being challenged.

    Following this logic, sharing copyighted content is free speech. I read it, listened to it, watched it, etc. It is now a part of my culture, and is mine to distribute, so long as I do so free of any notion of profit from said exchange. However, the moment I try to profit from that exchange, is the moment it becomes a commercial transaction which should be subject to copyright law and subsequent penalties.

    The major problem with where copyright is headed is that it's proponents seem to want copyright to be more than it is or was ever intended to be. It is commercial protection, to be used to guarantee that only one party may profit from a given work for a limited time, not a lock and key system to prevent everyone and anyone who hasn't paid from experiencing the work.

    By releasing a work to the public, it becomes the property of the public for all purposes but one, commercial sales. The only issue left for the courts to discern is whether or not a given exchange of said work was commercial of not. The former being a clear case of copyright infringement, the latter being a case of the public sharing something that the author made public by releasing it in the first place.

     

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  30.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 9:58am

    Re:

    Meh. You do realize that the Copyright Clause was in the Constitution before the First Amendment was added, don't you? It would make more sense to say the First Amendment violates the Copyright Clause. We both know you'd never say that, though.

    This is misleading, and you must know it. I did not say the copyright *clause* violates the First Amendment, but that copyright *law* does. Surely, you must have learned the difference, right?

    Secondly, as others have pointed out (though you falsely deny), the First Amendment, coming later, does in fact supersede the Copyright Clause.

    And, there is no way in which the First Amendment violates the copyright clause. For someone who purports to understand the law, that is an odd and somewhat laughable statement. Nothing in the First Amendment violates anything in the copyright clause.

    Fact is, they are both in the Constitution, and they are both to be interpreted in light of each other. You guessed it--balance. I don't know why that word is so taboo around here. ;)

    You really may want to try reading the book "no law," which shows why this is wrong. The First Amendment is clear, that "no law," may be written that impinges on freedom of expression. There are, yes, some exceptions to this (defamation law being a big one), but those exceptions are quite narrow, and only allowed in cases where direct harm can be shown. That is not the case with copyright law -- which is a serious and fundamental problem.

    It's true that courts have tried to balance these two, but they've done a piss poor job of it, supported by really dumb and counterfactual statements.

     

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    Mike Masnick (profile), Sep 15th, 2010 @ 10:00am

    Re: The Constitution is nevertheless consistent

    However, as I've tried to explain to you before, Mike, the 'progress' clause does not conflict.

    You keep claiming this, but you have yet to support it. I have yet to find a single person who believes this in any way other than yourself.

    Sorry, Crosbie, but you're barking up the wrong tree here. You keep pretending the copyright clause means something that no one -- not a single legal scholar -- appears to agree with. I'm not sure what to say, but there doesn't seem to be any legal argument in support of your position.

     

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  32.  
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    average_joe (profile), Sep 15th, 2010 @ 10:01am

    Re: Re: Re: The "balance" delusion

    Authors' exclusive rights are just that, exclusive. This is to the exclusion of the public--in the short term. Once copyright expires, then the rights are no longer exclusive. They become public.

    Of course the two are in opposition in the short term. That's the trade-off. That's the balance. The short term public detriment becomes a long term public advantage.

    This is so obvious and so well established in our jurisprudence that it cracks me up when you guys pretend like it doesn't work this way.

    Spare you examples of alternative ways it can work. That's got nothing to do with this way working.

     

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  33.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:02am

    Re:

    Yes, the Copyright clause is in the Constitution. Copyright *law* is not, and is therefore perfectly capable of violating the Constitution and/or its amendments.

     

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    average_joe (profile), Sep 15th, 2010 @ 10:03am

    Re: Re: Re: Re:

    You're inability to cite any authority for your point of view is repulsive. You pretend like your opinion is established fact. It's not. I can't stand people who don't know the difference.

    Since when am I lower class? I better check my retirement accounts... ;)

     

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  35.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 10:03am

    Re: The "balance" delusion

    There is no "balance." "Balance" is one of those awful copyright weasel words like "theft." "Balance" implies that creators and audiences are in opposition with each other, when nothing could be further from the truth.

    Indeed. I've been making that point for years: http://www.techdirt.com/articles/20071214/184433.shtml

    The idea of balance in copyright law is, indeed, a myth. We're not looking for a balance, we're looking for the best solution that increases the opportunity for everyone.

    The balance language has always been troubling, especially coming from many people who I tend to agree with. It definitely presupposes the idea that things are in conflict and there need to be winners and losers. That's fundamentally incorrect -- but I can see how it appeals to the political folks, as it just *sounds* so nice.

     

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    Crosbie Fitch (profile), Sep 15th, 2010 @ 10:03am

    Re: Copyright vs.1st Amendment

    No, copyright is not authorised within the Constitution.

    Congress is empowered to secure an author's (natural) exclusive right to their writings.

    The 'progress clause' does not empower Congress to grant privileges.

    The Statute of Anne was simply copied, tweaked and legislated in 1790 without Constitutional sanction.

    It is revisionism to interpret power to secure a natural right as power to derogate from the individual's liberty (the whole fricking point of the Constitution being to protect such liberty) in order to grant a monopoly for the benefit of the press.

    Some such as Madison no doubt wanted copyright enacted, but that doesn't mean The Constitution empowered Congress to enact it.

     

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    Dark Helmet (profile), Sep 15th, 2010 @ 10:04am

    Re: Re: Re: Re: Why...

    For everyday occurrences, yes.

    When we're talking about people who've risen to the kind of positions where some pretty decent intellect can generally be assumed, not so much....

     

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  38.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:05am

    Re: Re:

    So, how should the "no law" prohibition be interepreted in light of the "you can make this kind of law" authorization?

    The most reasonable interpretation to me, and the one that courts have largely adopted, is that the copyright law authorized was not viewed as the type of law prohibited by the First Amendment.

     

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    Anonymous Coward, Sep 15th, 2010 @ 10:05am

    Re: Re: The Constitution is nevertheless consistent

    Look at this! We're in agreement!

     

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  40.  
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    average_joe (profile), Sep 15th, 2010 @ 10:06am

    Re: Re:

    Unless an Amendment explicitly repeals another part of the Constitution, it's meant to be read in light of the rest of the Constitution. It makes no sense to say an Amendment supersedes an Article I power, or vice versa. It absolutely does not work that way. Didn't you guys take Civics class in school?

     

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  41.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 10:07am

    Re: Re: Re: Re: The "balance" delusion

    Authors' exclusive rights are just that, exclusive. This is to the exclusion of the public--in the short term. Once copyright expires, then the rights are no longer exclusive. They become public.

    Hence the concerns of how copyright law violates the First Amendment.

    Of course the two are in opposition in the short term. That's the trade-off. That's the balance. The short term public detriment becomes a long term public advantage.

    First Amendment law is clear that such tradeoffs should *only* be allowed in evidence of actual harm. copyright has no such requirement.

    This is so obvious and so well established in our jurisprudence that it cracks me up when you guys pretend like it doesn't work this way.

    You should look a little more closely at the history and the jurisprudence. Historically, copyright law was not looked at via a First Amendment lens. That's only happened more recently, and that's part of what's mucked things up. Because early copyright law cases ignored the First Amendment, the courts simply tried to weasel their way out of things when 1st Amendment issues were finally raised.

    The argument is that this was a mistake on the part of the courts.

    Spare you examples of alternative ways it can work. That's got nothing to do with this way working.

    Ah, spoken like a true determinist. "This is the way the law works, so shut up with your improvements." You can't be serious, can you?

     

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  42.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:08am

    Re: Re: Re: Re: The "balance" delusion

    I think the legitimate criticism is that "short term" now equals life (which is getting to be really long) plus 70 (which is really long). The mere fact that this is not eternity doesn't necessarily make it "balanced."

    "Balance" is a great and necessary concept in generaly and awfully hard to agree on when talking specifics.

     

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  43.  
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    Nastybutler77 (profile), Sep 15th, 2010 @ 10:09am

    Re:

    It would make more sense to say the First Amendment violates the Copyright Clause.

    Meh. You apparently don't understand the purpose of an amendment. Note #2 below. A constitutional amendment supercedes whatever comes before. That's the point.


    amendment   /əˈmɛndmənt/ [uh-mend-muhnt]
    noun
    1. the act of amending or the state of being amended.
    2. an alteration of or addition to a motion, bill, constitution, etc.

    3. a change made by correction, addition, or deletion


    Now you can say that as an addition to the constitution it doesn't supercede it, which seems to be your arguement, but that's just intellectually dishonest as Mike likes to call it, and it certainly doesn't make more sense to say whatever was there first supercedes the amemdment. That's just asinine.

     

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  44.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:12am

    Re: Re: Copyright vs.1st Amendment

    Again, you saying something doesn't make it true. If you something else to point to, other than your say-so, I really am interested.

     

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  45.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:15am

    Re: Re:

    "Secondly, as others have pointed out (though you falsely deny), the First Amendment, coming later, does in fact supersede the Copyright Clause."

    This is absolutely wrong as a matter of constitutional law.

    Stick with economics. You have credibility in that area of study.

     

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  46.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 10:19am

    Re: Re: Re:

    This is absolutely wrong as a matter of constitutional law.

    Stick with economics. You have credibility in that area of study.


    Funny, then, that I only learned of this from a well-known constitutional law expert.

    Who do I trust? The internationally recognized constitutional law expert... or the anon coward? Tough choice!

     

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  47.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 10:26am

    Re: Re: The Constitution is nevertheless consistent

    Mike, no worries.

    Very few people agreed with the heretics that claimed the Earth orbited the Sun.

    The interpretation that remains when the impossible has been eliminated, no matter how incredible (or unpalatable to the faithful) must be the truth.

    I think there's probably about the same level of entrenched support for copyright and devout faith that its legislation was Constitutional as there was for Earth being central.

    I'll let you know when any legal scholars start agreeing with me. There probably are some who would agree with me already, but neither of us has yet become aware of them.

     

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  48.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:35am

    Re: Re: Re: The Constitution is nevertheless consistent

    That you are not *necessarily* wrong, does not mean you are not wrong.

    As a matter of curiosity, how did you first concieve/receive this notion that the progress clause does not authorize copyright law?

     

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  49.  
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    Michael, Sep 15th, 2010 @ 10:38am

    Re: Re: Re: Re: Copyright vs.1st Amendment

    I have to go with Guinness.

    I think there is a bartender that patented putting an orange in a beer, so you may need to get license for that now.

     

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  50.  
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    Marcus Carab (profile), Sep 15th, 2010 @ 10:39am

    Re: Re: Re: Re: Re: Why...

    While I don't think you're wrong, this is hardly a clear Occam's Razor case. The argument could be made either way for which is the "simpler" explanation.

     

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  51.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 10:42am

    Re: Re: Re: Copyright vs.1st Amendment

    If you're interested in my argument I could point you here: http://www.digitalproductions.co.uk/index.php?id=177

    It requires interpreting the Constitution from a natural rights perspective, which permeated the Framers' minds as copyright permeates ours. Unfortunately, it's exceedingly difficult to divest our indoctrination of copyright and corruption of terms such as 'right' as in 'legally granted right', in order to recognise the meaning of right vs privilege in the Constitution.

    So you'll need to be amenable to the natural rights philosophy and a bit of philology.

     

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  52.  
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    average_joe (profile), Sep 15th, 2010 @ 10:43am

    Re: Re: Re: Re:

    Funny, then, that I only learned of this from a well-known constitutional law expert.

    Who do I trust? The internationally recognized constitutional law expert... or the anon coward? Tough choice!


    If it were true that the First Amendment trumped the Copyright Clause, then we wouldn't have copyright. It's simply not true.

    Personally, I'll take the word of the Supreme Court:

    The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers' view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.”

    In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id., at 560, 105 S.Ct. 2218. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. Specifically, 17 U.S.C. § 102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper & Row, this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.” 471 U.S., at 556, 105 S.Ct. 2218 (internal quotation marks omitted). Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. See Feist, 499 U.S., at 349-350, 111 S.Ct. 1282.

    Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U.S.C. § 107, the defense provides: “[T]he fair use of a copyrighted work, including such use by reproduction in copies ..., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The fair use defense affords considerable “latitude for scholarship and comment,” Harper & Row, 471 U.S., at 560, 105 S.Ct. 2218, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (rap group's musical parody of Roy Orbison's “Oh, Pretty Woman” may be fair use).


    Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (emphasis on the word "balance" added).

    I love it when they say "balance." ;)

     

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  53.  
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    average_joe (profile), Sep 15th, 2010 @ 10:46am

    Re: Re: The Constitution is nevertheless consistent

    Sorry, Crosbie, but you're barking up the wrong tree here. You keep pretending the copyright clause means something that no one -- not a single legal scholar -- appears to agree with. I'm not sure what to say, but there doesn't seem to be any legal argument in support of your position.

    I agree with you there. Crosbie never makes any sense to me. I get what he's saying, I just don't get why he's saying it.

     

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  54.  
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    average_joe (profile), Sep 15th, 2010 @ 10:50am

    Re: Re:

    I wouldn't rely on the dictionary to make your constitutional law arguments. You're bound to get things wrong. If the First Amendment superseded the Copyright Clause, there would be no copyright. It's just that simple. See my posting from Eldred elsewhere in this thread for how the First Amendment and Copyright Clauses are balanced.

     

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  55.  
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    Anonymous Coward, Sep 15th, 2010 @ 10:51am

    Re: Re: Re: Re: Copyright vs.1st Amendment

    I reject the notion that the Constitution *cannot* contradict your conception, or Locke's conception, or any other particular conception of "natural law."

    I'm disinclined to twist its words to fit such a conception where there is a much more plausible explanation.

     

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  56.  
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    Nastybutler77 (profile), Sep 15th, 2010 @ 10:52am

    Re:

    I completely agree with everything you just said. Very succinct and logical. Kudos to you anonymous sir.

     

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  57.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 10:53am

    Re: Re: Re: Re: The Constitution is nevertheless consistent

    From researching the natural rights/libertarian philosophy that informed The Founding Fathers and Framers of the US Constitution.

    This bio http://www.thomaspaine.org/bio/edison.html helps explain why so few are able to similarly recognise why the 'progress clause' could not empower the granting of privileges* (even if people believe Madison wanted it to).

    * Necessarily rights derogating.

     

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  58.  
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    vivaelamor (profile), Sep 15th, 2010 @ 10:55am

    Re: Re: The "balance" delusion

    "The law is all about balance, Nina. And that's a good thing. :)"

    We might conclude then that copyright is not good law.

     

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    Greevar (profile), Sep 15th, 2010 @ 11:01am

    Re: Re: Re: Re: The "balance" delusion

    "Short-term" is quite relative considering that the copyright is for the life of the creator and 70 years past death. You also fail to realize that corporations hold many copyrights and as a legal constructs with human-like rights, their life span is potentially infinite. That would itself bypass the basic principles of copyright. How can a copyrighted work enter the public domain if the copyright holder never dies?

    I've said this before and I'll say it again: Artists do not need copyright. Publishers need copyright. They need it because they don't create works, they sell them. Their entire business model depends on legal protections that turn something as intangible as creative works into physical property with the intent to own a idea, lock it away, and charge people for the privilege to enjoy it. These publishers contribute nothing to the arts that artists can't do on their own and exist merely for the sake of making profit for themselves. These people retard free speech, they retard creativity, and they make money hand over fist doing it.

     

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  60.  
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    vivaelamor (profile), Sep 15th, 2010 @ 11:03am

    Re: Re: Re: Re: Re:

    "Personally, I'll take the word of the Supreme Court:"

    Mike headed you off here when he said: "It's true that courts have tried to balance these two, but they've done a piss poor job of it, supported by really dumb and counterfactual statements."

    "I love it when they say "balance." ;)"

    I guess you're glad that Mike said it first then.

     

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  61.  
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    Modplan (profile), Sep 15th, 2010 @ 11:03am

    Re: Re: Re: Re: Re:

    Funny how your citation implies that copyright does not trump the first amendment by very definition of having to strike balance between protecting an idea and fixed expression, for fear of running foul of the first amendment. Copyright is only compatible so long as:

    a) This "balance" between the 2 occurs, and

    b) The fundamental assumption of why copyright is needed holds true.

    This is something that becomes plain as day when actually looking at documents from the founders themselves.

     

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  62.  
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    Anonymous Coward, Sep 15th, 2010 @ 11:07am

    Re: Re: Re: The Constitution is nevertheless consistent

    Oh my god, you seriously didn't just use the "they laughed at Galileo" bit, did you?

    You did.

    Face. Palm.

     

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  63.  
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    ChrisB (profile), Sep 15th, 2010 @ 11:07am

    Re: The Constitution is nevertheless consistent

    > Authors have a natural right to exclude others from their
    > writings (in their possession) - because others are NOT
    > in possession of them (must commit burglary in order to
    > obtain them).

    A secret is something you tell no one. Like a diary. If I wanted your diary, I'd have to break into your house.

    Once you tell someone, it is not a secret, and you have no right to control what they do with it. The government figured that if there wasn't some control, no one would talk, so they created Copyright.

    The "natural right" is for me to do whatever I want with what I hear, read or see. It is lunacy to suggest otherwise. If you don't like that, keep it a secret.

     

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  64.  
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    Anonymous Coward, Sep 15th, 2010 @ 11:08am

    Re: Re: Re: Re: Re: The Constitution is nevertheless consistent

    And there it is - Crosbie is a losertarian corporatist. It all makes sense now.

     

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    Richard (profile), Sep 15th, 2010 @ 11:14am

    Re: Re: The "balance" delusion

    The law is all about balance

    Not really. It is about balance when balance is appropriate - but balance is not always appropriate.

     

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    Greevar (profile), Sep 15th, 2010 @ 11:19am

    Re: Re: The "balance" delusion

    The "balance" terminology is just a mechanism to pacify the naysayers of copyright. They're just trying to make us believe that they're being "fair". "Fair and balanced", where have I heard that before? They just keep doing what they need to keep the peasants from revolting against the monarchy that is the publishing industry.

     

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  67.  
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    average_joe (profile), Sep 15th, 2010 @ 11:20am

    Re: Re:

    This is misleading, and you must know it. I did not say the copyright *clause* violates the First Amendment, but that copyright *law* does. Surely, you must have learned the difference, right?

    You're right, they are different. But the Clause empowers Congress to make the laws, so you're really splitting hairs here.

    Secondly, as others have pointed out (though you falsely deny), the First Amendment, coming later, does in fact supersede the Copyright Clause.

    This truly makes no sense. If the First Amendment trumped the Copyright Clause, there would be no copyright. Just look to the quote I posted elsewhere in this thread from Eldred. If the First Amendment trumped the Copyright Clause, why would the Supreme Court be talking about how the two must be balanced? Clearly it's because they are to be read together, and dare I say it, balanced.

    And, there is no way in which the First Amendment violates the copyright clause. For someone who purports to understand the law, that is an odd and somewhat laughable statement. Nothing in the First Amendment violates anything in the copyright clause.

    If one violates the other, then the reverse must also be true. The Copyright Clause allows a rights holder to limit other people's free speech, in violation of the First Amendment. The First Amendment allows people to freely make speech that copyright protects, in violation of the Copyright Clause. Of course they are in conflict with each other, on the surface at least, hence the need for balance.

    You really may want to try reading the book "no law," which shows why this is wrong. The First Amendment is clear, that "no law," may be written that impinges on freedom of expression. There are, yes, some exceptions to this (defamation law being a big one), but those exceptions are quite narrow, and only allowed in cases where direct harm can be shown. That is not the case with copyright law -- which is a serious and fundamental problem.

    But the First Amendment must be read in light of the entire Constitution. This is Con Law first-day stuff. Check my quote from Eldred for more info about the balance between the two.

    It's true that courts have tried to balance these two, but they've done a piss poor job of it, supported by really dumb and counterfactual statements.

    I can't fault you for your opinion, but I can say I disagree. I actually think the safety valves are working.

     

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  68.  
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    average_joe (profile), Sep 15th, 2010 @ 11:24am

    Re: Re: Re: Re: Re: Re:

    This is exactly what I'm saying. The First Amendment does not trump the Copyright Clause, and the Copyright Clause does not trump the First Amendment. They are of equal stature, and they must be read together. Most of all, they must be balanced.

    As far as the "fundamental assumption of why copyright is needed holds true" goes... I think it holds true just fine.

     

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  69.  
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    Modplan (profile), Sep 15th, 2010 @ 11:26am

    Re: Re: Re:

    This truly makes no sense. If the First Amendment trumped the Copyright Clause, there would be no copyright. Just look to the quote I posted elsewhere in this thread from Eldred. If the First Amendment trumped the Copyright Clause, why would the Supreme Court be talking about how the two must be balanced? Clearly it's because they are to be read together, and dare I say it, balanced.


    Dare I say it, copyright must be balanced against the first amendment precisely because it is trumped by it, which can only be remotely begun to be worked around with the idea/expression dichotomy and fair use provisions.

     

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  70.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 11:31am

    Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    The most plausible explanation is that Madison knew he couldn't write a clause that explicitly empowered Congress to enact the Statute of Anne or grant monopolies in literary works, so in expecting that he could later rely upon tacit agreement that copyright was an individual's (natural) right, he simply empowered Congress to secure the individual's (natural) exclusive right to their writings.

    The clause in this form obviously passed by anyone who would have challenged an explicit empowerment to grant privileges/monopolies - because giving power to secure a (natural, pre-existing) right was within the remit of the Constitution.

    So the clause is a fuck-up. It didn't ring any alarm bells because it didn't empower Congress to grant monopolies (such as in literary works). And yet copyright was still able to be legislated (with inferred Constitutional sanction). Even England had arguments as to whether copyright was a natural right (eventually recognising it wasn't).

    So, however much some assumed copyright was constitutional in 1790 and however much nearly everyone assumes it is constitutional in 2010, it isn't.

    I will agree that Madison probably intended/expected the clause to sanction the granting of copyright, but it didn't. It's possible he recognised this, and even recognised that it would therefore be more readily approved by others. I suspect Jefferson recognised it was insufficient, hence why he suggested adding 'monopolies in literary works' to the Bill of Rights (which Madison declined, no doubt realising it would only draw others' attention to the issue).

     

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  71.  
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    Modplan (profile), Sep 15th, 2010 @ 11:31am

    Re: Re: Re: Re: Re: Re: Re:

    Except nowhere did the founders talk of how freedom of expression needed to be balanced against a monopoly over reproduction of a work, only over how a monopoly *may* be needed in cases where there was an economic imbalance between middle men distributors and artists reluctant to publish their work, and that this should be reserved to severe circumstances.

    There is no balance to be had between copyright and the first amendment - first amendment trumps copyright, and copyright is only allowed given certain criteria and with restrictions like fair use.

     

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  72.  
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    average_joe (profile), Sep 15th, 2010 @ 11:32am

    Re: Re: Re: Re:

    Dare I say it, copyright must be balanced against the first amendment precisely because it is trumped by it, which can only be remotely begun to be worked around with the idea/expression dichotomy and fair use provisions.

    That makes no sense. If the Copyright Clause was trumped by First Amendment, or vice versa, there would be no need to balance them. One would simply supersede the other. The reason they must be balanced is because they are equals.

     

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  73.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 11:36am

    Re: Re: Re: Re: The Constitution is nevertheless consistent

    They laughed at Bozo the clown too.

    If it quacks it doesn't mean it's a canard.

     

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  74.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 11:44am

    Re: Re: Re: The Constitution is nevertheless consistent

    Very few people agreed with the heretics that claimed the Earth orbited the Sun.


    A factual position that can be proven by science.

    Your claims are all about interpretation, and you've yet to put forth an interpretation that anyone on any side of this debate -- other than yourself -- appears to agree with. That's my issue with it.

     

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  75.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 11:46am

    Re: Re: Re: Re: Re:

    If it were true that the First Amendment trumped the Copyright Clause, then we wouldn't have copyright. It's simply not true.

    AJ, why must you constantly misquote people here? We did not say that the First Amendment trumps all copyright. We said that current copyright *law* appears to violate the 1st amendment -- and that First Amendment law should be used as a stick against which copyright law is measured (something that's only been done recently). But if you are deciding between the two, First Amendment wins, as it came later.

     

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  76.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 11:48am

    Re: Re: Re: Re: Re:

    Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003) (emphasis on the word "balance" added).


    Again, I suggest reading up on why Eldred was so poorly decided. The reasoning is hugely problematic, and will eventually be looked upon as a massive mistake. No Law again has good coverage of this.

    A big part of the problem was Larry Lessig's arguments -- something he admits. He made some big mistakes in Eldred, but in the end the Supreme Court got it Supremely wrong.

     

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  77.  
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    Anonymous Coward, Sep 15th, 2010 @ 11:49am

    Re: Re: Re: Re:

    If what you said about the First Amendment trumping the Copyright Clause is based upon what you read or were told by an "expert", then I would start relying upon a new expert because yours is wrong...wrong on constitutional history and why it was that the Bill of Rights came about, and wrong on how the US Constitution is and has been construed by the Supreme Court.

    Since I rather doubt your "expert" actually expressed the unqualified statement you made, perhaps you should read what was actually expressed a few times until you see where it was that you went wrong.

     

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  78.  
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    vivaelamor (profile), Sep 15th, 2010 @ 11:51am

    Re: Re: Re:

    "I wouldn't rely on the dictionary to make your constitutional law arguments."

    In the absence of any evidence to the contrary, it seems a sensible place to start. Regardless, have a professor of philosophy's opinion: "This is clearly because the amending power is supreme within its legal system, even if not omnipotent".

    Have another scholarly opinion: "This clause in parentheses is superseded by the 13th Amendment"

    The fact of how the supreme court decided to interpret amendments does not prove that is how amendments are supposed to work. Seriously, why bother with legalise if you're going to interpret it intentionally ambiguously. Just look at UK law; we don't have a set constitution but legislation is interpreted in order of newest takes precedence because that is the only sane way to do things. Of course there's always the issue of entrenchment, but you've yet to argue that.

     

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  79.  
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    Anonymous Coward, Sep 15th, 2010 @ 11:53am

    Re: Re: Re: Re: Re:

    No, they're not.

     

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  80.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 11:53am

    Re: Re: Re:

    You're right, they are different. But the Clause empowers Congress to make the laws, so you're really splitting hairs here.

    Uh, no, not at all. The clause empowers Congress to do things within limits. Congress has not abided, no matter what the Supreme Court says.

    If one violates the other, then the reverse must also be true

    Oh come on. That's a logical fallacy that anyone it the first week of a logic class would know is untrue. Don't they teach would be lawyers logic any more?

    If one violates the other, the reverse need not be true.

    But the First Amendment must be read in light of the entire Constitution. This is Con Law first-day stuff. Check my quote from Eldred for more info about the balance between the two.

    Again, I've already addressed this in the post. I wouldn't rely on Eldred too much. You'll end up regretting it. The First Amendment is read in light of the entire constitution, but that does not change the analysis.

    I can't fault you for your opinion, but I can say I disagree. I actually think the safety valves are working.


    Then you haven't been paying attention. Which is, frankly, sad. I can't believe that anyone can claim the safety valves are working properly when you get out and out censorship.

     

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  81.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 11:56am

    Re: Re: Re: Re: Re:

    If what you said about the First Amendment trumping the Copyright Clause is based upon what you read or were told by an "expert", then I would start relying upon a new expert because yours is wrong...wrong on constitutional history and why it was that the Bill of Rights came about, and wrong on how the US Constitution is and has been construed by the Supreme Court.

    Heh. Again, well-known, well-regarded expert, with detailed treatise on the subject, or anonymous coward with no citations?

    You make this so tough...

     

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  82.  
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    Anonymous Coward, Sep 15th, 2010 @ 12:18pm

    Re: Re: Re: Re: Re: Re:

    You may derive joy and amusement from casting aspersions in my direction all day long, but at the end of the day it will not change one iota that your unqualified statement about the temporal separation between Article 1, Section 8, Clause 8 and the First Amendment means that the latter has trumped the former is plainly wrong.

    Is it possible that legislation could be enacted that would be declared invalid on First Amendment grounds? Of course. But, this is a far cry from your unqualified statement that deals with two constitutional provisions.

    For the avoidance of doubt, the two provisions pertinent here are the "copyright portion" of Article 1, Section 8, Clause 8, and the "free speech" provision of the First Amendment.

     

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  83.  
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    Anonymous Coward, Sep 15th, 2010 @ 12:21pm

    Re: Re: Re: Re: Re: Re: Re:

    For the sake of consistency, "copyright portion" should read:

    "copyright" provision

     

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  84.  
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    Richard (profile), Sep 15th, 2010 @ 12:22pm

    Re: Re: Re:

    Broadly speaking a later amendment must override an earlier one - otherwise your constitution is nonsense. It is a general principle of law in the UK that an earlier parliament cannot tie the hands of a later one.
    Thus it is certain that a later amendment can abrogate an earlier one if its framers so wish.

    The question thus turns on the intentions of those who drafted the first amendment. Now what they didn't do was to explicitly repeal the copyright clause (which they certainly had the power to do if they wished).

    Of course from a constitutional point of view copyright is merely authorised, not mandated so one can only assumed that those who framed the first amendment believed that it was possible to write a copyright law that didn't contradict free speech.

    It is likely that they also believed that the copyright law that existed at that time was not in contradiction to free speech.

    However since then much has changed both legally and technologically and it is very likely that your current copyright law, in a modern technological context, is in contradiction to free speech (as well as to general rules of fairness).

    This applies to your statutes and a series of awful legal decisions (the Naxos and Eldred cases stand out as particularly bad here).

     

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  85.  
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    Stuart, Sep 15th, 2010 @ 12:27pm

    Re: Re: Why...

    My razor is big ans sharp. It is also currently wielded by me. It says "I win bitches."
    :)

     

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    average_joe (profile), Sep 15th, 2010 @ 12:28pm

    Re: Re: Re: Re: Re: Re:

    AJ, why must you constantly misquote people here? We did not say that the First Amendment trumps all copyright. We said that current copyright *law* appears to violate the 1st amendment -- and that First Amendment law should be used as a stick against which copyright law is measured (something that's only been done recently). But if you are deciding between the two, First Amendment wins, as it came later.

    I see what you're saying, and I'm sorry if I misquoted you. Of course, I still disagree with you. ;)

    The Constitution grants Congress the power to create copyright laws. Congress gets a lot of leeway to create these laws, and the balancing test employed by them is theirs to create. The courts would only get involved if Congress went too far and created a law that was unconstitutional. The courts have not overturned copyright laws because they don't think they are unconstitutional.

    Your idea that the First Amendment should be given some special preference as it came later just isn't founded in constitutional theory. If you can point to some authority for that position, other than what you claim your friend said, I'd be glad to look at it.

    They teach us in Con Law that all parts of the Constitution are given equal weight, no matter when they were enacted. When portions are in conflict, they must be balanced in light of each other. Makes sense to me. Made sense to the Court in Eldred.

     

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    average_joe (profile), Sep 15th, 2010 @ 12:32pm

    Re: Re: Re: Re: Re: Re:

    Again, I suggest reading up on why Eldred was so poorly decided. The reasoning is hugely problematic, and will eventually be looked upon as a massive mistake. No Law again has good coverage of this.

    A big part of the problem was Larry Lessig's arguments -- something he admits. He made some big mistakes in Eldred, but in the end the Supreme Court got it Supremely wrong.


    Eldred was mostly about whether the CTEA was unconstitutional. Whether or not you agree with the outcome, the balancing test I quoted is good logic. It certainly points out that it's not a question of whether one trumps the other. It's a question of balancing the two.

     

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  88.  
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    Anonymous Coward, Sep 15th, 2010 @ 12:45pm

    Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    "I will agree that Madison probably intended/expected the clause to sanction the granting of copyright, but it didn't."

    Ok, so if the author of the clause intended it to mean X, and Congress interpreted it to mean X a few years later, and everyone interprets it to mean X now, why again are you so sure it "actually" means "bananas"?

    Words are not magical, and do not inherently/necessarily mesh with your philosophical views. In other words, the Constitution can be "wrong" and still be "the law."

    You say the Constitution "cannot" sanction the granting of privileges. Why not? It might conflict with your philosophical view and/or the view of some framers, but does not mean it cannot do it.

     

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  89.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 12:46pm

    Re: Re: Re: Re: The Constitution is nevertheless consistent

    I wasn't trying to suggest interpretation of heavenly bodies was comparable to interpretation of a nation's constitution, only that entrenched dogma can prove extremely resistant to anything that challenges it (however superior an explanation).

    All I can do is introduce people to the explanation - withstanding any vitriolic denigration.

     

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  90.  
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    average_joe (profile), Sep 15th, 2010 @ 12:48pm

    Re: Re: Re: The "balance" delusion

    I've been trying to think of an answer that included the word incentivizing, but nothing's come to mind. ;)

    Of course you may disagree with the balancing that's being done by Congress, but that doesn't mean they're not balancing things.

     

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  91.  
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    average_joe (profile), Sep 15th, 2010 @ 12:54pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    There is no balance to be had between copyright and the first amendment - first amendment trumps copyright, and copyright is only allowed given certain criteria and with restrictions like fair use.

    The First Amendment does not trump copyright. There is no authority that says it does. If I'm wrong, show me.

     

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  92.  
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    average_joe (profile), Sep 15th, 2010 @ 12:56pm

    Re: Re: Re: Re: Re: Re:

    I'm gonna have to play the "cite authority" card. Prove they're not equal.

    I've provided language from the Supreme Court about how they are to be balanced. What evidence have you got?

     

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  93.  
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    Anonymous Coward, Sep 15th, 2010 @ 1:05pm

    Re: Re: Re: Re: Re: Re:

    Well that was convincing. (sarcasm)

     

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  94.  
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    average_joe (profile), Sep 15th, 2010 @ 1:06pm

    Re: Re: Re: Re:

    Uh, no, not at all. The clause empowers Congress to do things within limits. Congress has not abided, no matter what the Supreme Court says.

    If Congress has done something unconstitutional, then it could be challenged successfully in court. Have you seen that happen? I haven't.

    Oh come on. That's a logical fallacy that anyone it the first week of a logic class would know is untrue. Don't they teach would be lawyers logic any more?

    If one violates the other, the reverse need not be true.


    Surprisingly, they don't teach logic in law school. Perhaps they should. Nonetheless, I picked a little logic up when I got my degree in theoretical mathematics. ;)

    My point was that they're in conflict with each other, so one necessarily conflicts with the other, and vice versa.

    Again, I've already addressed this in the post. I wouldn't rely on Eldred too much. You'll end up regretting it. The First Amendment is read in light of the entire constitution, but that does not change the analysis.

    The holding in Eldred was pretty narrow. The part about balancing copyright and the First Amendment, on the other hand, is universally applicable. You're free to believe that the balancing done by Congress is unreasonable, but this does not negate the necessity of balancing copyright and the First Amendment in the first place.

    Then you haven't been paying attention. Which is, frankly, sad. I can't believe that anyone can claim the safety valves are working properly when you get out and out censorship.

    Censorship? Hardly. Only with respect to unique expressions, perhaps. Luckily, ideas, theories, and facts aren't ever locked up. You discount the safety valves too much, IMO.

     

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  95.  
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    average_joe (profile), Sep 15th, 2010 @ 1:08pm

    Re: Re: Re: Re:

    Broadly speaking a later amendment must override an earlier one

    This is simply untrue as a matter of constitutional construction.

     

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  96.  
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    Ed C, Sep 15th, 2010 @ 1:12pm

    Re: Re: Re: Re: Re: The "balance" delusion

    Actually, works specifically owned by a corporation fall under "works for hire", which last up to 95 years after publication. The term of copyright sold to a corporation is still 70 years after the original author's death.

     

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  97.  
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    average_joe (profile), Sep 15th, 2010 @ 1:14pm

    Re: Re: Re: Re: Re: Re:

    What's the treatise? I'll give it a look-see.

     

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  98.  
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    Anonymous Coward, Sep 15th, 2010 @ 1:14pm

    Re: Re: Re: Re:

    Wait, what are you citing as "out and out censorship?"

     

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  99.  
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    Anonymous Coward, Sep 15th, 2010 @ 1:19pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Well, it trumps copyright law to the extent application of copyright law would violate the First Amendment.

    That doesn't mean the First Amendment trumps the progress clause of the Constitution, but it does mean that the First Amendment would trump a Congressional law saying all copyright holders get to prohibit any crticism of their work, or something.

     

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    average_joe (profile), Sep 15th, 2010 @ 1:20pm

    Re: Re: Re: Re: Re: The "balance" delusion

    Hence the concerns of how copyright law violates the First Amendment.

    I just do not see the violation. Sorry. Perhaps you could elaborate.

    First Amendment law is clear that such tradeoffs should *only* be allowed in evidence of actual harm. copyright has no such requirement.

    I don't really follow you here either. Copyright laws are presumptively not violative of the First Amendment.

    You should look a little more closely at the history and the jurisprudence. Historically, copyright law was not looked at via a First Amendment lens. That's only happened more recently, and that's part of what's mucked things up. Because early copyright law cases ignored the First Amendment, the courts simply tried to weasel their way out of things when 1st Amendment issues were finally raised.

    The argument is that this was a mistake on the part of the courts.


    Without knowing what cases you're talking about, I can't really respond.

    Ah, spoken like a true determinist. "This is the way the law works, so shut up with your improvements." You can't be serious, can you?

    My point was that people shouldn't offer up alternatives that work to try to disprove copyright laws. One does not imply the other.

     

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    average_joe (profile), Sep 15th, 2010 @ 1:32pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    You're just pointing out how they have to be balanced. If one side is given too much leeway, the other one kicks in and restricts it. This isn't one trumping the other, it's the balancing of the two.

     

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  102.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 1:36pm

    Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    Should we suffer copyright because Madison wanted it legislated or should the literal reading of the Constitution strictly limit power delivered to Congress to do no more than protect its citizens' (natural) rights?

    If the literal reading does not empower the granting of monopolies such as copyright, who's to know what other Framers only ratified it because of that literal reading?

    If it had said "To promote the progress of science and useful arts, by granting to authors and inventors transferable monopolies in their respective literary works and mechanical designs" it would have been rejected.

    See Wikipedia:
    Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

    The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.


    Government's sole purpose is safeguarding the individual and his/her inherent, inalienable rights

     

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  103.  
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    Anonymous Coward, Sep 15th, 2010 @ 1:39pm

    Re: Re: Re:

    "If one violates the other, then the reverse must also be true"

    Here's proof that you are wrong:

    Let "S1 -> S2" be "S1 implies S2".

    You claim that "A implies B implies B implies A", meaning "(A -> B) -> (B -> A)" must be True for every possible value of A and B (it must be a tautology).

    Proof by contradiction: Let A=False and B=True:

    (F -> T) -> (T -> F); #F->T is True
    T -> (T -> F); #T->F is False
    T -> F;
    F:

    Therefore, your statement is False.

     

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  104.  
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    Karl (profile), Sep 15th, 2010 @ 1:48pm

    Re: Re: The "balance" delusion

    The idea of balance in copyright law is, indeed, a myth. We're not looking for a balance, we're looking for the best solution that increases the opportunity for everyone.

    In theory, the existence of copyright is a solution that increases opportunity for everyone.

    The "balance" issue comes into play when copyright is viewed (properly, in my opinion) as a contract between the public and creative artists. A properly written contract benefits both parties; a one-sided contract is just exploitation.

    Of course, that "contract" hasn't been followed in at least thirty years. It's not just unbalanced, it's capsized and sank.

     

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  105.  
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    Atkray (profile), Sep 15th, 2010 @ 1:49pm

    Re: Re: Re: Re: Re: The Constitution is nevertheless consistent

    As a college student I am still trying to learn as much as I can and am acutely aware of the huge shortcomings in my knowledge base.

    I find myself agreeing with Mr Fitch.

    Should I be worried?

     

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  106.  
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    average_joe (profile), Sep 15th, 2010 @ 1:51pm

    Re: Re: Re: Re:

    Spare me. I have a degree in math.

    What I meant was that they were in conflict with each other, which is true.

    I love how you guys always try to argue the little things, and you don't focus on the big things that matter.

    Where's Mike's evidence that the First Amendment trumps copyright laws? You know he'll never present any...

     

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  107.  
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    Richard (profile), Sep 15th, 2010 @ 1:51pm

    Re: Re: Re: Re: Re:

    So you admit that your constitution is nonsense then...

     

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  108.  
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    average_joe (profile), Sep 15th, 2010 @ 1:53pm

    Re: Re: Re: Re:

    It's simple, viv. If the First Amendment, which guarantees free speech, trumped the Copyright Clause, and therefore copyright laws, then copyright laws wouldn't exist. My right to free speech would always trump your ability to prevent me from copying your work. It just doesn't work this way. The two must be read together and balanced.

     

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  109.  
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    average_joe (profile), Sep 15th, 2010 @ 1:55pm

    Re: Re: Re: Re: Re:

    I think he's abandoned this thread... if you call him out on too many mistakes he tends to disappear.

    I still wanna see his "proof" that the First Amendment trumps copyright. LOL!

     

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    Modplan (profile), Sep 15th, 2010 @ 1:57pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    When was free speech given too much leeway for copyright to kick in and restrict it?

    It hasn't. Copyright is solely granted based on an economic and technological assumption, one that is intended to reach the larger goal of promote the progress. Copyright is not a counter balance to too much free speech, it is a counter balance to presumed negative economic forces that happens to interfere with free speech in ways that it requires idea/expression dichotomies and fair use to not be ruled unconstitutional.

     

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  111.  
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    average_joe (profile), Sep 15th, 2010 @ 1:57pm

    Re: Re: Re: Re: Re: Re:

    Mike was saying that they don't have to be balanced, that the First Amendment trumps copyright since it came later in the Constitution. For this assertion, he has offered zero proof other than to say his friend told him so. LOL!

     

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  112.  
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    Anonymous Coward, Sep 15th, 2010 @ 1:58pm

    Re: Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    "Should we suffer copyright because Madison wanted it legislated..."

    no

    "...should the literal reading of the Constitution strictly limit power delivered to Congress to do no more than protect its citizens' (natural) rights?"

    A literal reading would not have be bound by any interpretation of "natural rights" as that is not the literal text.

    "If the literal reading does not empower the granting of monopolies such as copyright..."

    I don't concede that. I think "exclusive right to Writings" is pretty clear, but one can always come up with an alternative interpretation to even the clearest language (as you've shown)

    "...who's to know what other Framers only ratified it because of that literal reading?"

    First, I don't think "Writings" necessarily literally refers only to a physical object. Second, I think you have to use your best judgment interpreting language, and this doesn't pass the laugh test to me (or anyone else, apparently). Why authorize Congress to grant laws specifically protecting property rights in Writings and not other physical objects (candles, chairs, plows) that were already the subject of common law property rights? How does it promote the progress of science and the useful arts?

    "If it had said "To promote the progress of science and useful arts, by granting to authors and inventors transferable monopolies in their respective literary works and mechanical designs" it would have been rejected."

    Says you.

    Your Wikipedia cite is meaningless for numerous reasons, but it suffices to say that I'm not arguing that copyright is a natural "human right," but that the Constitution authorized Congress to grant a legal right (call it a privilege if you like).

     

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  113.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 1:58pm

    Re: Re: Re: Re: Re:

    Censorship? Hardly. Only with respect to unique expressions, perhaps. Luckily, ideas, theories, and facts aren't ever locked up. You discount the safety valves too much, IMO.

    Do me a favor and pick me up a copy of "Coming through the Rye" by JD California, would you?

    Oh shoot, you can't. Despite the fact it copied no unique expression from JD Salinger. But you insisted there's no censorship and the safety valves work! I'm confused, Joe, please explain...

     

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  114.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 2:02pm

    Re: Re: Re: Re: Re:

    Where's Mike's evidence that the First Amendment trumps copyright laws? You know he'll never present any...


    Joe, I posted links to two books on the subject.

    You really have an incredible need to simply lie about me. So sad.

     

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  115.  
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    Richard (profile), Sep 15th, 2010 @ 2:13pm

    Re: Re: Re: Re: Re:

    It would have helped if you had read the rest of my comment properly before you replied.

    Put yourself in the mind of someone writing a constitutional amendment. Clearly if you wish to repeal an earlier amendment or clause then you can do so explicitly and then there would be no argument (even from you I would hope).

    If you don't do so then clearly you believe either:

    1. That your amendment automatically overrides the existing constitution.

    or

    2. That there is no conflict between your amendment and the existing constitution.

    In neither of these scenarios does the question of "balance" arise. If different clauses that contradict need to be "balanced" then those who wrote the amendments were clearly incapable of logical thought.

    (btw It is no use to appeal to US legal authority when talking to me. I'm not in the US and I don't subscribe to your somewhat comical, quasi-religious, attitude to law in general and your constitution in particular. Stick to universal logical and moral principles only.)

     

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  116.  
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    Myth, Sep 15th, 2010 @ 2:13pm

    Missing the point?

    I had to chime in on this. basically, in a nutshell, you're all missing the point.

    You can argue over the legalities in the U.S.A. etc etc etc, but this peice of legislation/whatever you want to call it, is being exported all over the world, and is being misused. sometimes terribly.

    I agree that it's important to get those things in line as well, but you need only look at China or Russia, to realise they really don't need any help oppressing their population (even if there's been marked gains in the populations rights in the last 20 years)

    On a more personal note, living in australia, your congress pretty much feeding their cocks down our politicians thoats, this downright shits me as some dipshit like (the now retired) Michael Atkinson will think "hey that's a fucking great idea!"

    To be honest, i'm completely law/politics illiterate, but i'm fairly sure that both of those were created for the benefit of society in general, not to protect the rights of a specific party.

    To do that would basically be a nazi regime in the making.
    I'd rather be in a socialist country.

     

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  117.  
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    Modplan (profile), Sep 15th, 2010 @ 2:15pm

    Re: Re: Re: Re: Re:

    I'm surprised you don't know about this considering you apparently submitted info to the EFF:

    http://www.eff.org/wp/unintended-consequences-under-dmca

     

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  118.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 2:17pm

    Re: Re: Re: Re: Re:

    It's simple, viv. If the First Amendment, which guarantees free speech, trumped the Copyright Clause, and therefore copyright laws, then copyright laws wouldn't exist. My right to free speech would always trump your ability to prevent me from copying your work. It just doesn't work this way. The two must be read together and balanced.

    Simple only to simplistic minds who don't even read the post that they're respondng to.

    Again, the book No Law presents a potential solution (which I am not in favor of) that shows how copyright law and the first amendment can co-exist, after first explaining in great detail how copyright violates the first amendment.

    Secondly, numerous treaties on the subject have pointed out other concepts -- such as allowing copyright to stand only in cases where harm can be shown. Historically, the only exceptions to the first amendment have been in cases where actual harm is shown. There's a good paper on the subject here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1367624

    Another worthwhile paper on the subject: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=267848 if you don't want to read Netanel's full book.

    As for an authority on copyright law who made this clear, I assume you consider Nimmer (the elder) to be one? He's perhaps the most cited expert on copyright law around... and some quotes from Nimmer:


    But surely, many will conclude, the First Amendment does not apply to copyright infringers. Yet, is such a conclusion justified? The language of the First Amendment does not limit its protection to speech which is original with the speaker. It provides rather that Congress shall make 'no law' abridging freedom of speech; and Justice Black used to say that this reference to 'no law' means no law "without any 'ifs' or 'buts' or 'whereases.'" If one adopts Justice Black's absolutist approach to the First Amendment it is difficult to see how any copyright law can be regarded as constitutional....


    But surely, many will conclude, the First Amendment does not apply to copyright infringers. Yet, is such a conclusion justified? The language of the First Amendment does not limit its protection to speech which is original with the speaker. It provides rather that Congress shall make 'no law' abridging freedom of speech; and Justice Black used to say that this reference to 'no law' means no law "without any 'ifs' or 'buts' or 'whereases.'" If one adopts Justice Black's absolutist approach to the First Amendment it is difficult to see how any copyright law can be regarded as constitutional....




    [I]f a completely literal reading of the First Amendment is to be made, then we must likewise recognize that the First Amendment is an amendment, hence superseding anything inconsistent with it which may be found in the main body of the Constitution. This, of course, includes the Copyright Clause....

    To be fair, Nimmer later does some legal contortions to walk himself out of this argument, but the idea that such arguments are totally made up and are ridiculous does not seem to be supported by what's out there.

     

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    Crosbie Fitch (profile), Sep 15th, 2010 @ 2:22pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    Most people believe 'exclusive right' refers to 'legally granted right to exclude others', i.e. 'copyright'. And yet, copyright hadn't been granted, so how could the Constitution refer to a right that didn't exist until years later?

    Unlike material property, intellectual works (writings/designs) are subject to different facilities in terms of being able to be communicated and reproduced. They therefore need special consideration in terms of natural rights. I can naturally exclude you from the intellectual works in my private possession in terms of preventing you copying them as well as in terms of preventing you removing the material in which they are fixed. It's the aspect of excluding others from copying that needs recognition in the Constitution.

    Where did the Constitution empower ('authorise'?) Congress to grant a privilege?

     

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    Karl (profile), Sep 15th, 2010 @ 2:22pm

    Re:

    I mostly agree, but actually I don't think you took it far enough:

    By releasing a work to the public, it becomes the property of the public for all purposes but one, commercial sales.

    This, in fact, is the entire purpose of copyright. To incentivize publication, so that it becomes the property of the public.

    Copyright was put in place to encourage non-commercial use. By making this unlawful, copyright law didn't "expand" copyright, it went against its very purpose. Not only is does it (potentially) violate the First Amendment, it violates the Copyright Clause as well.

    Too bad Congress is too deep in the pockets of media industries to see that, and that the Supreme Court is so unwilling to challenge Congress on this issue.

     

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  121.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 2:23pm

    Re: Re: Re: Re: Re: Re:

    Oops. Accidentally repeated a paragraph. The other paragraph I meant to cite was the following:

    The First Amendment tells us that 'Congress shall make no law... abridging the freedom of speech, or of the press'. Does not the Copyright Act fly directly in the face of that command? Is it not precisely a 'law' made by Congress which abridges the 'freedom of speech' and 'of the press' in that it punishes expressions by speech and press when such expressions consist of the unauthorized use of material protected by copyright?

     

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  122.  
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    Patrik, Sep 15th, 2010 @ 2:33pm

    Re: Re: Re: Re: Re: Re:

    Uhh... The "Find" function betrays you: I'm not finding any links to any books...

    I think you did mention that JD California book, but as I understand it, the book in itself has nothing to do with copyright or the 1st Amendment. Although, I really have no idea, I've never read it and only vaguely recall hearing about it in the past.

    P.S. Average Joe, FTW. I come to this site just to find his posts.

     

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  123.  
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    Mike Masnick (profile), Sep 15th, 2010 @ 2:51pm

    Re: Re: Re: Re: Re: Re: Re:

    Uhh... The "Find" function betrays you: I'm not finding any links to any books...

    Um. Reality betrays you.

    From the post:

    I've recommended it before, but an excellent book on this subject is the book No Law, by David Lange and Jefferson Powell, where they spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment, and that courts who have claimed otherwise have been wrong as a matter of law (the second half of the book then explains how copyright law can still exist with massive changes -- effectively a compulsory licensing solution, that I don't think makes much sense). Neil Netanel's Copyright's Paradox is also an excellent examination of the topic.

    I think you did mention that JD California book, but as I understand it, the book in itself has nothing to do with copyright or the 1st Amendment. Although, I really have no idea, I've never read it and only vaguely recall hearing about it in the past.

    I mentioned that book as an example of censorship. The book is not about the 1st amendment, but the case very much is.

     

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  124.  
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    Anonymous Coward, Sep 15th, 2010 @ 2:54pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    "And yet, copyright hadn't been granted, so how could the Constitution refer to a right that didn't exist until years later?"

    Quite simply: it is authorizing Congress to grant the right in the future, if it so chooses.

    Just like I can authorize my friend to use the money I gave him to buy me a sandwhich...EVEN THOUGH THAT SANDWICH HAS NOT BEEN MADE YET!!!.

    (is your mind blown, dude?)

    "Where did the Constitution empower ('authorise'?) Congress to grant a privilege?"

    In the very clause we're talking about. Also, as I cited before in another clause authorizing the granting of Letters of Margue.

     

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  125.  
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    Anonymous Coward, Sep 15th, 2010 @ 2:58pm

    Re: Re: Re: Re: Re: Re: The Constitution is nevertheless consistent

    "Should I be worried?"

    Only if you agree with his ultimate conclusions. He's obviously not a moron (and he's right in his statement that the rareness of his viewpoint does not necessarily mean it is false).

     

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  126.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 3:41pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    Congress can be empowered to secure a natural right because it already exists. This is the uncontroversial interpretation of the clause from a natural rights perspective.

    Let us imagine Congress could be empowered to secure a privilege that is to be later granted.

    You'll be needing another clause that empowers Congress to grant that privilege. Where does the Constitution empower Congress to derogate the right to copy from the individual's liberty?

    Letters of marque are military instruments for use against an enemy in time of war, and explicitly sanctioned - "Congress shall have power ... to grant Letters of Marque".

    Where's the clause that says "Congress shall have power ... to grant monopolies in literary works"?

    If there was such a clause then perhaps Congress could also be empowered to secure that monopoly on behalf of the holder - though privileges aren't supposed to be secured by the government as policed and prosecuted by their holders.

    All arguments that the Constitution empowers Congress to grant monopolies are based on wishful thinking - arising from ingrained dogma - deep indoctrination.

    Why else call a clause that doesn't mention copyright the 'copyright clause'?

    Thomas Paine knew well that a Constitution could not empower a government to grant privileges (except when such instruments of injustice might be warranted such as against an enemy in wartime).

     

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  127.  
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    Anonymous Coward, Sep 15th, 2010 @ 3:47pm

    Re: Re: Re: Re: Re: Re:

    BUT THEY'RE AMERICAN! WHO CAN? AMERICAN!

     

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  128.  
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    average_joe (profile), Sep 15th, 2010 @ 4:00pm

    Re: Re: Re: Re: Re: Re: The Constitution is nevertheless consistent

    Be afraid. Be very afraid.

    (just kiddin'!)

     

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  129.  
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    Jose_X, Sep 15th, 2010 @ 4:13pm

    Re: Re: Re:

    It's untrue? What document are you talking about?

    There are clear cases of conflicts between later Amendments and the earlier perhaps amended document, and the later changes always take precedence. In particular, the document proper has describes a process whereby that document is to be amended by changes the states desire.

    What you are talking about is that we must look at context in order to capture the intended meaning of an amendment, and, perhaps in the high court's current over-riding opinion on copyright vs. free speech, the two are believed to carry significant weight despite the other.

    Tomorrow's court, after hearing a new set of arguments and looking at new evidence, may justifiably end up ruling that in fact fair use must be extended and copyright reduced in potency due in part to the influence from the First Amendment.

     

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  130.  
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    Jose_X, Sep 15th, 2010 @ 4:19pm

    Re: Re: The Constitution is nevertheless consistent

    >> The government figured that if there wasn't some control, no one would talk, so they created Copyright.

    Was that a joke?

    And when will people feel free enough to speak their minds? When copyright lasts for 100 generations of humans?

    [I thought I fell under the category of "person" and felt free enough to speak right now.]

     

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  131.  
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    Anonymous Coward, Sep 15th, 2010 @ 4:24pm

    Re: Re: Re: Re: Re: Re: Re:

    You want me to prove a negative?

     

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  132.  
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    Anonymous Coward, Sep 15th, 2010 @ 4:55pm

    Re: Re: Re: Re: Re: Re:

    Um, if it "is no use to appeal to US legal authority when talking to [you]" about the interaction betwen one portion of the United States Constitution and another portion of the United States Constitution, it might just be no use talking to you.

     

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  133.  
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    Jose_X, Sep 15th, 2010 @ 5:10pm

    Re: Re: Re: Re: Re: Re: The "balance" delusion

    >> I don't really follow you here either. Copyright laws are presumptively not violative of the First Amendment.

    Exhibit I:
    http://www.thefreedictionary.com/amendment

    >>
    a·mend·ment (-mndmnt)
    n.
    1. The act of changing for the better; improvement: "Society may sometimes show signs of repentance and amendment" (George G. Coulton).
    2. A correction or alteration, as in a manuscript.
    3.
    a. The process of formally altering or adding to a document or record.
    b. A statement of such an alteration or addition: The 19th Amendment to the Constitution gave women the right to vote.
    >
    The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
    >
    The judicial Power of the United States, shall be vested in one supreme Court..
    >
    All legislative Powers herein granted shall be vested in a Congress of the United States...
    >
    The Congress shall have Power ...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;
    >
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    >
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
    >
    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

     

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  134.  
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    Jose_X, Sep 15th, 2010 @ 5:14pm

    Re: Re: Re: Re: The "balance" delusion

    Well, he already suggested what the extremes would be:

    (a) to kill all copyright holders

    or

    (b) to bomb the US and destroy all technologies and knowledge bases that might facilitate future copyrighting or which were abused in the past by copyrighters.

     

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  135.  
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    Jose_X, Sep 15th, 2010 @ 5:18pm

    Re: Re: Re: Re: Re: The "balance" delusion

    My bad, I realized now that I was just repeating the implied

     

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  136.  
    identicon
    Jose_X, Sep 15th, 2010 @ 5:21pm

    Re: Re: Re: Re: Re: Re: The "balance" delusion

    >> I don't really follow you here either. Copyright laws are presumptively not violative of the First Amendment.

    Exhibit I:
    http://www.thefreedictionary.com/amendment

    ** amendment (-mndmnt)
    n.
    1. The act of changing for the better; improvement: "Society may sometimes show signs of repentance and amendment" (George G. Coulton).
    2. A correction or alteration, as in a manuscript.
    3.
    a. The process of formally altering or adding to a document or record.
    b. A statement of such an alteration or addition: The 19th Amendment to the Constitution gave women the right to vote.
    **

    Did you catch that about changing, correcting, improvement, altering, or adding?

    Exhibit II:
    http://www.usconstitution.net/const.html#Article5

    ** The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
    **

    Did you catch that last part that clearly recognizes that the Constitution can be and would be expected to be changed in meaning via Amendments?

    The Constitution does not expressly forbid Amendments except, it seems to me, that one exception just mentioned (and which is irrelevant today in the 21st century).

    A major conflict between free speech -- a later Amendment -- and copyright is on the scope of "derivative work" being taken too broadly. We must copy and reuse to a large extent as humans in order to grow and interact. Imagine English language or Math or Science or any form of culture and learning if we could not leverage existing peers as well as late and recent past accomplishments.

    Additionally, if the progress is not promoted (eg, by copyright monopolies that extend beyond say 5 years, to pick a number), then that copyright law has no basis in the Constitution and hence free speech should rule over it unimpeded.

    Congress is not the expert in what it means to "promote the progress" any more than they are the expert in any law they write, some of which the Supreme Court has ruled were unconstitutional.

    What are the powers of Congress, of the SCOTUS, and of the people?

    Exhibit III:
    http://www.usconstitution.net/const.html#Article3

    ** The judicial Power of the United States, shall be vested in one supreme Court..
    **

    The SCOTUS (whenever the federal government comes into play) is the organ that decides with final authority when people have doubt over meaning or need judgment.

    Exhibit IV:
    http://www.usconstitution.net/const.html#Article1

    ** All legislative Powers herein granted shall be vested in a Congress of the United States...
    **

    http://www.usconstitution.net/const.html#A1Sec8

    ** The Congress shall have Power ...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;
    **

    This means Congress is not the "expert" in copyright or anything like that. They, and only they, are empowered to pass certain laws to the extent these would, eg, promote the progress.

    Otherwise, .. if Congress is not passing laws to promote the progress (and Congress was not stated to be the "experts", in fact, the SCOTUS is the final judge in just who is the expert and what they say and is implied).. then Congress has no business passing such laws unless you can find some other Congressional power under which such a law would fall .. keeping in mind further some amendments and the Preamble:

    Exhibit V (duh):
    http://www.usconstitution.net/const.html#Am1

    ** Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
    **

    .. "shall make no law .. abridging the freedom of speech"

    Exhibit VI:
    http://www.usconstitution.net/const.html#Am10

    ** The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
    **

    .. for example, the right to freedom of speech, both as spelled out in the First Amendment or as otherwise might be a natural right, belong to the people, not to Congress.

    and Exhibit VII:
    http://www.usconstitution.net/const.html#Preamble

    ** We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
    **

    So Congress exists to ... promote the general Welfare (of We the People of the United States).

    The final judge is SCOTUS not Congress.

    Monopolies tend to stifle and as well to abridge freedoms -- by definition. Numerous studies (as well simple arguments in some cases) suggest long copyrights and broad patents essentially do not promote the progress.

    So Congress would not be promoting the general Welfare nor progress by passing bad monopoly laws, and hence would be violating rights of people or states.. all as judged by SCOTUS, yesterday, today, or tomorrow.

     

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  137.  
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    Jose_X, Sep 15th, 2010 @ 5:22pm

    Re: Re: Re: Re: Re: Re: Re: The "balance" delusion

    The formatting got screwed up in the parent comment.. I reposted

     

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  138.  
    identicon
    Anonymous Coward, Sep 15th, 2010 @ 5:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    Ok, so at least you *finally* agree that the Constitution can empower Congress to grant a right/privilege that is not necessarily a "natural right." That's a step in the right direction.

    Now our disagreement appears to be whether Article I, Section 8, Clause 8 actually does so.

    Your argument, as best I understand it, is that they use the word "secure," so they *must* be talking about a right that already exists "in nature."

    Is that right?

     

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  139.  
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    Anonymous Coward, Sep 15th, 2010 @ 5:28pm

    Re: Re: Re: Re: Re: Re: Re: The "balance" delusion

    "The final judge is SCOTUS not Congress."

    Well, SCOTUS is not of the opinion that copyright laws inherently violate the First Amendment, so I guess that settles it!

    SCOTUS has also held that it's the job of Congress to determine how best to promote the progress, the fact that they make a mistake does not make the law they pass unconstitutional--all according to SCOTUS!

     

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  140.  
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    BearGriz72 (profile), Sep 15th, 2010 @ 5:32pm

    Re: The Constitution is nevertheless consistent

    Tired Argument is Tired

     

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  141.  
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    Jose_X, Sep 15th, 2010 @ 5:40pm

    Re: Re: Re:

    Essentially you are stating that anything short of stating that the prior document is wrong in exactly X fashion would amount to the amendment not being able to adjust the meaning of the existing document (in any implied way).

    That position seems very unrealistic to me and contrary to intuition as well as experience.

    We must look at context, always, but the fact appears to be that amendments are expected to change the existing document in meaning. I wrote more here http://www.techdirt.com/article.php?sid=20100914/21345411016#c1852

    It's very easy for the Constitution proper to have placed limits on the power of amendments, but only one such limit was placed (from my quick scan) and it has nothing to do with the copyright or free speech issue and is now irrelevant.

    It would also be easy for Amendments to specify that they only modify slightly or otherwise don't impact some prior existing section (we see this in US bills and contracts), but that is not what the First, Ninth, or Tenth Amendments do at all. These go out of their way to clarify that individuals have certain over-riding rights and that Congress does have limits.

     

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  142.  
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    Jose_X, Sep 15th, 2010 @ 5:57pm

    Re: Re: Re: Re: Re: Re: Re:

    Well, as stated in other comments, I disagree with you.

    As for what Eldrich said, based on what you quoted earlier, it gave the opinion that the First Amendment and the copyright clause would have similar weight because of context, in particular, because of their close proximity in passage.

    That particular point might not stand in the future (a split decision right?), especially, after further arguments over what the "founding fathers" may have intended with respect to each of these.

    Second, the decision speaks of copyright law as intended to improve free speech overall. It presumably does this by creating economic motivations. Well, this is another point that the Court could easily reconsider in the future in light of further economic and other arguments, research, and changes in society/technology.

    Additionally, the specific point of the current copyright term duration being acceptable and limited (in relation to the founding fathers' views and current context) might also be re-evaluated upon more careful analysis.

     

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  143.  
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    BearGriz72 (profile), Sep 15th, 2010 @ 6:00pm

    Re: Re: Re: Re: Re: Re: The "balance" delusion

    "Actually, works specifically owned by a corporation fall under "works for hire", which last up to 95 years after publication. The term of copyright sold to a corporation is still 70 years after the original author's death."
    ** United States Constitution - Article 1 - Section 8: Powers of Congress (Excerpted) **
    "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;"
    The United States Average Life Expectancy as of 2008 was 78.43902 years. So subtracting 18 years for childhood and rounding down for convenience we get an average possible productive lifespan of 60 years then we add 70 years 'after death' to get a total copyright on an idea that somebody had lasting up to 130 years (and maybe even longer).

    Does that sound like the 'limited time' the Constitution describes? How can ANYBODY with a modicum of intelligence believe this makes sense?

     

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  144.  
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    Jose_X, Sep 15th, 2010 @ 6:05pm

    Re: Re: Re: Re: Re: Re: Re:

    From what you quoted of Eldred, the court suggested what a proper balance might be, and that balancing point took into account that current copyright law appeared to them to enhance free speech overall. Should they change their mind about this copyright law attributed enhancement of free speech in the future, they could still easily seek balance by cutting copyright law down in size so that free speech is not hurt.

    Where is the balance point: http://www.techdirt.com/article.php?sid=20100914/21345411016#c305

     

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  145.  
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    Jose_X, Sep 15th, 2010 @ 6:08pm

    Re: Re: Re: Re: Re: Re: Re:

    >> ..the temporal separation between Article 1, Section 8, Clause 8 and the First Amendment means that the latter has trumped the former is plainly wrong.

    http://www.techdirt.com/article.php?sid=20100914/21345411016#c1934

     

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  146.  
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    Jose_X, Sep 15th, 2010 @ 6:22pm

    Re: Re: Re: Re: Re: Re: Re:

    >> What evidence have you got?

    There are various replies to your position along those lines. I'll summarize a few points.

    Adding balance does not mean that an amendment is subservient. It means the Court may not take the most liberal meaning of the amendment if such would appear to conflict with something else; however, "balance" and "most liberal" doesn't imply 50/50. In the Eldred piece you quoted, the court justifies "balance" because copyright law is presumed to enhance free speech and because the two were created very close in time (the implication being that if the amendment came much later, it would be more likely to over-ride the existing text, as is the meaning of an "amendment", and as is allowed by the Constitution proper in Article V).

     

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  147.  
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    BearGriz72 (profile), Sep 15th, 2010 @ 6:38pm

    Re: Re: Re:

    Yes it is true, it is not made up, & it can be supported. It is a legal fact, also as regarding SCotUS ... {{Citation Needed}} good luck finding one.

    "Constitutional Amendment: The means by which an alteration to the U.S. Constitution, whether a modification, deletion, or addition, is accomplished."

    That means it superseded the original.

    /END

     

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  148.  
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    RadialSkid, Sep 15th, 2010 @ 6:39pm

    Re: Re: Re: Re: Re: Re: The Constitution is nevertheless consistent

    "losertarian"

    So I guess that makes you authoritarian, then? In which case, what are you doing here?

     

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  149.  
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    Anonymous Coward, Sep 15th, 2010 @ 7:55pm

    Re: Re: Re: Re: Re: Re: Re:

    It's people like you that make people like me despise our own country. Out of hand dismissal of valid arguments makes you look like the stereotypical egocentric US citizen. The rest of us still deal with the rest of the world.

     

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  150.  
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    Lawrence D'Oliveiro, Sep 15th, 2010 @ 8:11pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    average_joe wrote:

    The amendments, by definition, alter the previously existing constitutional rights. The latest amendment, when dealing with conflicts, takes precedence.

    That is absolutely untrue.

    Then what you said must also apply to other Amendments, like the Second Amendment, as well.

     

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  151.  
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    Karl (profile), Sep 15th, 2010 @ 9:37pm

    Re: Re: Re: Re: Re: Re: Re: The "balance" delusion

    Actually, works specifically owned by a corporation fall under "works for hire", which last up to 95 years after publication.

    Actually, all of the rights are granted to the corporation, which (according to the Sony Bono Act) is 120 years. Regardless of the date of death of the "author."

    If it's not a "work for hire," it's 95 years after publication, or the life of the author plus 70 years. In other words, in order for a copyright terms to be equitable to the author, he would have to live for 50 years after his work had been published.

     

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  152.  
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    Karl (profile), Sep 15th, 2010 @ 10:35pm

    rights via contracet

    No offense to the bickerers, but I think you are all looking at this the wrong way.

    Copyright is purely a statutory right, a right granted by the laws of the commonwealth. It's in the same legal category as the "right" to make a right turn at a red light.

    It is not a right so much as a contract. And, by contract, we can give up certain rights. For example, we give up the right to free speech when we work for an employer.

    The copyright contract is spelled out in the Constitution. The public gives up its right to profit off of certain public works, and grants an exclusive right to (a right to prevent others from) the profit from those works to the artist.

    In exchange, the public encourages artists to make those works public by publishing them, so that - barring commercial use - the public can use those expressions however they like.

    This outlook sidesteps Crosbie's argument - the rights are granted to others, voluntarily, as any other "inalienable" right (e.g. free speech) would be.

    It also sidesteps the copyright maximalists' argument that such rights are akin to "property." They are not; that right can be removed at any time by the public (through their "representatives," Congress). Those rights aren't property rights, they're contractual rights.

    And viewed purely in terms of a contract, it becomes immediately apparent that copyright holders have been granted a pass to break that contract, while the other rights-holding party (the public) has not.

     

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  153.  
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    Richard Hack (profile), Sep 15th, 2010 @ 10:47pm

    It's like I pointed out in my last post here

    Intellectual property is BY DEFINITION a coercive mechanism which abrogates BASIC FREEDOMS such as control of own's own property (by denying that it IS "your" property") and one's own person (by specifying what acts you can or cannot take with regard to things you physically possess).

    IP is an attempt to use state power to impose a coercive monopoly for the benefit of a select demographic.

    And economics has long established that ALL monopolies are by definition coercive (since there are very few "natural" monopolies, and those few have to compete with other ways of doing the same things.)

    And history and economics has long established that coercion in a marketplace distorts and corrupts the marketplace to the detriment of society as a whole.

    Intellectual property is BY DEFINITION anti-freedom.

     

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  154.  
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    Crosbie Fitch (profile), Sep 15th, 2010 @ 11:55pm

    Re: Re: Re: Re: Re: Re: Re: The "balance" delusion

    It should be blindingly obvious that an author's (natural) exclusive right (and its securing) does not abridge another's freedom of speech.

    It is the monopoly in the Statute of Anne that annuls the right to copy (and so abridges the freedom of speech to communicate a 'protected' work) in the majority of inhabitants to leave it by exclusion in the hands of a few.

    However, a law that is strictly limited to securing an author's (natural) exclusive right to their writings (that does not deny people the liberty to copy or communicate that which is in their legitimate possession - to grant the privilege of a monopoly) is a law that does not abridge the freedom of speech.

    Natural rights do not abridge natural rights. Privileges do. Law that secures rights is good. Law that grants privileges is bad.

    If people persist in deluding themselves that the Progress clause grants copyright they will persist in failing to resolve inherent contradictions in Constitutional protections of the individual's natural rights and the privilege of copyright that derogates from them.

    Devout faith that the Constitution empowered Congress to grant copyright is tantamount to hypnosis or brain damage in affecting people's mental capacity to resolve Constitutionally recognised right vs the fait accompli of legislated privilege.

    So I'll add that not only do you need to grok natural rights and its respective 18th century terminology in order to understand the Constitution, you also need to be willing to countenance the terrifying possibility that the Statute of Anne is unconstitutional. No matter how many coveted the monopoly it legislated, it did not secure the author's exclusive right, but instead abridged the people's cultural liberty (by annulling the individual's right to copy).

     

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  155.  
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    Crosbie Fitch (profile), Sep 16th, 2010 @ 12:13am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Be careful not to confuse clauses and amendments with legislation that people claim had their sanction.

    Copyright was created in 1709. It was enacted by the US in 1790. It is probably the 'not invented here' syndrome that makes people assume copyright was carefully drafted as a means of securing an author's exclusive right to their writings in order to 'promote the progress'.

    Suggesting that copyright enhances free speech is a contortion resulting from the corrupting imperative that 'Copyright's constitutionality must not be questioned!'.

     

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  156.  
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    Crosbie Fitch (profile), Sep 16th, 2010 @ 12:42am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Copyright vs.1st Amendment

    I wouldn't say I agreed "that the Constitution can empower Congress to grant a right/privilege" in the general sense.

    As per Paine, privileges are instruments of injustice and a Constitution would invalidate itself if it empowered their granting.

    That the Constitution specifically empowered the granting of powers of seizure against an enemy in time of war does not essentially contradict this (even if they meet the definition of privilege).

    But if anything, the GRANTing of 'Letters of Marque' should help you recognise that the Framers had a grasp of language necessary to empower the granting of privileges as opposed to the securing of (natural) rights. What they didn't have a grasp of was how the language would evolve over the coming decades until 'right' was used in place of 'privilege', and people would interpret the Constitution as if it had been written for the 21st century reader (indoctrinated to believe that copyright was as much a right as a right against burglary).

     

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  157.  
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    Richard (profile), Sep 16th, 2010 @ 3:02am

    Re: Re: Re: Re: Re: Re: Re:

    "is no use to appeal to US legal authority when talking to [you]" about the interaction betwen one portion of the United States Constitution and another portion of the United States Constitution, it might just be no use talking to you.

    Because we are not arguing a case in court (and I am outside the US) a discussion with me about the US constitution/legal system is not a legal discussion but rather a meta-legal discussion. In a meta-legal discussion an authorative statement from within the legal system in question is only a fact - not a conclusive argument.

    It's like discussing the rules of chess compared to actually playing it.

     

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    Crosbie Fitch (profile), Sep 16th, 2010 @ 3:55am

    Re: Re: Re: Re:

    Concerning your use of 'authorised', it should be emphasised that the Framers are not the authority in the context of the power delivered by the Constitution.

    The Constitution defines the strict limits of the power provided by the people to Congress to protect them (the people).

    The people do not provide power to Congress to annul any of their rights. Thus it is an error to consider that the people empower Congress to annul their right to copy (and respective freedom of speech) in order to reserve this as a privilege for exploitation by the press.

    The people empower Congress to secure their (natural) right to exclude others from their writings.

    If an author gives someone their writing, it is self-evident that they do not have a (natural) right to exclude them from copying it. To have even the pretence of such power, they would need a privilege that annulled the recipient's natural right to copy, i.e. copyright.

    An author can naturally exclude another from (copying, etc.) the writings they possess that the other does not - in addition to excluding others from their material property (paper, ink, etc.).

     

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    average_joe (profile), Sep 16th, 2010 @ 5:47am

    Re: Re: Re: Re: Re: Re: Re: The "balance" delusion

    My point was that whenever the constitutionality of an Act of Congress is challenged in court, the presumption is that the Act is not unconstitutional. The burden is on the challenger to show that it is unconstitutional. This is always the case. See any case where the constitutionality of an Act was the issue for an example.

     

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    average_joe (profile), Sep 16th, 2010 @ 5:56am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    When was free speech given too much leeway for copyright to kick in and restrict it?

    You can't take a copy of "Catch-22," scratch out the author's name, put your name instead, make copies and sell them. Under the First Amendment, you should be able to. But copyright kicks in and says you can't.

     

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    Crosbie Fitch (profile), Sep 16th, 2010 @ 6:11am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Plagiarism is a deceit and nothing to do with the reproduction monopoly of copyright.

    Even if copyright was abolished, people still have a (natural) right not to be deceived as to a work's authorship.

     

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  162.  
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    average_joe (profile), Sep 16th, 2010 @ 6:17am

    Re: Re: Re: Re: Re: Re:

    Do me a favor and pick me up a copy of "Coming through the Rye" by JD California, would you?

    Oh shoot, you can't. Despite the fact it copied no unique expression from JD Salinger. But you insisted there's no censorship and the safety valves work! I'm confused, Joe, please explain...


    How did you determine that it wasn't infringing? The court disagreed with you.

    From the headnotes:

    Holdings: The District Court, Deborah A. Batts, J., held that:
    (1) allegedly infringing work was not a parody entitled to protection as a transformative work under the fair use doctrine;
    (2) infringing work was not rendered transformative by its accentuation of and comment upon characteristics of original novel's protagonist;
    (3) any transformative effect resulting from infringing work's use of original novel's author as a character was diminished by fact that use of the author did not amount to comment on the original novel itself;
    (4) factor of the nature of the copyrighted novel weighed against any finding that infringing work was a fair use; and
    (5) factor of the amount and substantiality of the portion used in relation to the copyrighted novel as a whole weighed heavily against any finding that infringing work was a fair use.


    Salinger v. Colting, 641 F.Supp.2d 250 (S.D.N.Y. 2009).

    No one is saying that that author can't write a book that contains those same ideas, theories, or facts. He just can't do so while "stealing" Salinger's unique expression. And that's not even true. He can "steal" Salinger's expression if it's for parody, criticism, etc. But that wasn't the case here.

    I hardly call that censorship. Not even close.

    The First Amendment guarantees you get to make free speech, but it has to be your free speech, not someone else's.

     

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    average_joe (profile), Sep 16th, 2010 @ 6:22am

    Re: Re: Re: Re: Re: Re:

    The thing I submitted to the EFF was about what damages were available in the USCG cases. It was a pretty narrow focus.

    To tell you the truth, I read a lot of briefs filed by the EFF, and a lot of them make me cringe. Not all, but a lot.

    When it comes to damages in file-sharing cases being out of control, I agree with them 100%.

    I'll read the link you provided. Thanks.

     

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    average_joe (profile), Sep 16th, 2010 @ 6:23am

    Re: Re: Re: Re: Re: Re:

    You just posted links to books. I don't know what's in those books. If you had some passages, that'd be better.

    Let's keep this friendly. :)

     

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    average_joe (profile), Sep 16th, 2010 @ 6:32am

    Re: Re: Re: Re: Re: Re: Re:

    I've downloaded the two articles you linked to, thanks. I'm actually in the middle of a lengthy article by David Nimmer called "Codifying Copyright Comprehensibly." It's great so far.

    If one adopts Justice Black's absolutist approach to the First Amendment it is difficult to see how any copyright law can be regarded as constitutional....

    I agree with him there, and that was my point. If the First Amendment superseded the Copyright Clause (and any law made under it), then there wouldn't be copyright. Instead, the two must be read together, each one giving way to the other. That's what the Court in Eldred was saying.

     

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    average_joe (profile), Sep 16th, 2010 @ 6:33am

    Re: Re: Re: Re: Re: Re: Re:

    P.S. Average Joe, FTW. I come to this site just to find his posts.

    Ahh, you're going to make me blush. ;)

     

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  167.  
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    Anonymous Coward, Sep 16th, 2010 @ 6:56am

    Re: Re: Re: Re: Re: Re: The Constitution is nevertheless consistent

    > Should I be worried?

    You should be worried if you reject it merely on its unconventionality or on the authority of others.

    Decide for yourself, on rational grounds.

     

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    vivaelamor (profile), Sep 16th, 2010 @ 7:09am

    Re: Re: Re: Re: Re: Re: Re:

    "Mike was saying that they don't have to be balanced, that the First Amendment trumps copyright since it came later in the Constitution. For this assertion, he has offered zero proof other than to say his friend told him so. LOL!"

    I don't think Mike considers the opinions of even his learned friends as 'proof', but then I've explained to you the difference between proof and evidence before. Your evidence has been thus far that the supreme court said so. Perfectly valid but it does not address any of the issues brought up here as the supreme court don't come by their decision in a manner by which a logical mind might follow. If you want to defer to the supreme court on authority alone then great, let's hope that they never make a decision you don't like.

     

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    vivaelamor (profile), Sep 16th, 2010 @ 7:12am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "Even if copyright was abolished, people still have a (natural) right not to be deceived as to a work's authorship."

    An oft quote phrase seems apt: you are entitled to your own opinion, but not your own facts.

     

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    vivaelamor (profile), Sep 16th, 2010 @ 7:39am

    Re: Re: Re: Re: Re: Re: Re:

    "No one is saying that that author can't write a book that contains those same ideas, theories, or facts. He just can't do so while "stealing" Salinger's unique expression. And that's not even true. He can "steal" Salinger's expression if it's for parody, criticism, etc. But that wasn't the case here."

    How do you know that? You can't have read the book, you're relying solely on the decision of the court. Some people who did read the book testified for the defendant:

    'Finally, he relies upon the declarations of two literary experts. Martha Woodmansee, a professor of English and law at Case Western Reserve University, described 60 Years Later as a "work of meta-commentary" that "pursues critical reflection on J.D. Salinger and his masterpiece [Catcher] just as do the articles that literary scholars
    conventionally write and publish in scholarly journals, but it casts its commentary in an innovative `post modern' form, specifically, that of a novel." Woodmansee Decl. ¶ 9. Robert Spoo, a professor at the University of Tulsa College of Law, found 60 Years Later to be a "sustained commentary on and critique of Catcher, revisiting and analyzing the attitudes and assumptions of the teenaged Holden Caulfield. In this respect, [60 Years Later] is similar to a
    work of literary criticism."'

     

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  171.  
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    vivaelamor (profile), Sep 16th, 2010 @ 7:46am

    Re: rights via contracet

    "so that - barring commercial use - the public can use those expressions however they like."

    This is not true. You do not have to be making money out of an infringing work to be prohibited from publishing it.

     

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    Crosbie Fitch (profile), Sep 16th, 2010 @ 7:59am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Because copyright is gradually becoming confused to be as a much a natural 'right' as a moral right (and moral rights in turn picking up proprietary aspects of the former) they are lumped together on Wikipedia. A terrible sign of the times.

    See Wikipedia/Moral rights/Berne Convention:
    Article 6bis of the Berne Convention protects attribution and integrity, stating:

    Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation.

    Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).

    There's a poor distinction made here:
    http://en.wikipedia.org/wiki/Moral_rights
    Natural rights, also called moral rights or inalienable rights, are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity.

    The term 'Moral rights' distinguishes the natural rights relating to intellectual works and their communication from the legislatively granted rights (from the privilege of copyright and its decomposition).

    Your jurisdiction may vary, but there is at least some recognition of a moral/natural right pertaining to the truth of authorship - even if it goes too far into realms of granting additional proprietary controls and remedies against defamation.

     

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    average_joe (profile), Sep 16th, 2010 @ 8:04am

    Re: Re: Re: Re: Re: Re: Re: Re:

    I'm sure there were arguments on both sides, or else there wouldn't have been a case.

     

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    Jose_X, Sep 16th, 2010 @ 8:11am

    Re: Re: Re: Re: Re: Re: Re: Re: The "balance" delusion

    A point I was trying to make is that they might find their reasoning in the past to have been incomplete and then change their position in this or that way. It's theirs to change. Congress has no inherent right as far as this goes, so they can get the boot tomorrow.

    Another point is that in fact Congress cannot be the authoritative source in general on any topic else they could use that excuse to violate the Constitution. The authoritative source is the Court via their interpretation founded on the Constitution. For them to surrender that right, say temporarily, means that such a clause could never be violated. Yet, clearly, Congress' will or wisdom is not enough to generate progress.

    The reason this question has survived is that there is no black and white way to judge if progress is being promoted. However, more sophisticated modeling and data analysis will over time approach answering that sort of question at least to a degree where a large majority of "experts" would agree one way or the other.

    One particular point is that the assumption appears to be that monopolies are bad (assuming that clause will allow some monopolies potentially to be created legally), so that the burden of proof appears to be on those claiming a monopoly is needed: does it "promote the progress" as opposed to merely "not stifling".

     

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    Jose_X, Sep 16th, 2010 @ 8:19am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I think the justices want to argue as reasonably as possible, but the gut of some of them tells them to treat IP a bit holy. I think future generations of justices that grow up with Internet access will realize that these laws aren't just creating a little harm or opportunity cost which potentially can be overlooked in allowing lower courts and the USPTO to have their bit of fun. [I am particularly upset with patents used on digitizable inventions (eg, most methods/processes accessible to most people).]

     

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  176.  
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    Karl (profile), Sep 16th, 2010 @ 9:21am

    Re: Re: rights via contracet

    You do not have to be making money out of an infringing work to be prohibited from publishing it.

    That's true, but it shouldn't be. This is one of the (many) ways that copyright holders have broken the contract.

     

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    Modplan (profile), Sep 16th, 2010 @ 9:22am

    Re: Re: Re: Re: Re: Re: Re:

    Google books contains both a preview and search function.

     

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    Mike Masnick (profile), Sep 16th, 2010 @ 10:26am

    Re: Re: Re: Re: Re: Re: Re:

    No one is saying that that author can't write a book that contains those same ideas, theories, or facts. He just can't do so while "stealing" Salinger's unique expression. And that's not even true. He can "steal" Salinger's expression if it's for parody, criticism, etc. But that wasn't the case here.

    Colting did not copy (and especially did not "steal") a single "unique expression." The book is entirely a new work.

    If you honestly don't see it as immensely troubling that a book had been banned in the US, I really don't know what to say, but it makes me wonder how you can look at yourself in the mirror.

    I hardly call that censorship. Not even close.


    Sickening. You disgust me. A book has been banned and you claim that's not censorship? Sickening.

    The First Amendment guarantees you get to make free speech, but it has to be your free speech, not someone else's.

    It was Colting's speech. Nothing in the book was expression copied from Salinger.

    Pure out and out censorship.

     

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    average_joe (profile), Sep 16th, 2010 @ 10:53am

    Re: Re: Re: Re: Re: Re: Re: Re:

    Colting did not copy (and especially did not "steal") a single "unique expression." The book is entirely a new work. If you honestly don't see it as immensely troubling that a book had been banned in the US, I really don't know what to say, but it makes me wonder how you can look at yourself in the mirror.

    So dramatic! Obviously the court disagreed that it was "entirely a new work." Noticeably you didn't address any of the holdings I posted from the Westlaw headnotes. And you seem to ignore that the defendant argued, unsuccessfully, that the work was parody. If the author argued that the work was parodic, then the author is admitting that it's derivative.

    Sickening. You disgust me. A book has been banned and you claim that's not censorship? Sickening.

    LOL! Again with the drama. Look, not all speech is free. You can't yell "Fire!" in a crowded theater, and you can't write unauthorized sequels to other people's books. What's disgusting is the idea that you think people should be able to that. Don't you value authors' rights? Guess not. But we both already knew that. You're a snaky one, Mike. You pretend to respect authors' rights when really you want to take them away.

    It was Colting's speech. Nothing in the book was expression copied from Salinger. Pure out and out censorship.

    And yet, you completely ignore the court's holdings. Out and out willful blindness to reality. Mike, I'm rhetoric-proof. You should know that by now.

    Let's look at what the Second Circuit said:

    Most of the matters relevant to Salinger's likelihood of success on the merits are either undisputed or readily established in his favor. Thus, Defendants do not contest either that Salinger owns a valid copyright in Catcher or that they had actual access to Catcher. And while they argue only that 60 Years Later and Catcher are not substantially similar, that contention is manifestly meritless. “In considering substantial similarity between two items, we review the district court's findings de novo-not on the clearly erroneous standard-because what is required is only a visual comparison of the works, rather than credibility, which we are in as good a position to decide as was the district court.” Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 766 (2d Cir.1991). And for largely the same reasons as the District Court, we affirm the District Court's finding that Catcher and 60 Years Later are substantially similar. Salinger v. Colting, 607 F.3d 68 (2nd Cir. 2010).

    So the Court of Appeals agreed with the District Court that the claim that the works weren't "substantially similar" was "manifestly meritless." That makes you "manifestly meritless" too, Mike. Care to explain that one? Or are you just ignoring the inconvenience of the truth to spout your First Amendment rhetoric?

     

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    Anonymous Coward, Sep 16th, 2010 @ 5:14pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    The law will destroy art.

     

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    Mike Masnick (profile), Sep 16th, 2010 @ 10:02pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    AJ, you are relying on a bad court ruling that will almost certainly be overturned. I am pointing out the basic consequences of that ruling: censorship. That you don't see such as censorship is what I find disgusting.

    You laugh it off as dramatic. Wow. You laugh about censorship. Sickening.

    Yes, the judge made a ridiculous ruling here. That ruling makes it clear that the idea/expression dichotomy is a joke. If there were a real idea/expression dichotomy, there would be nothing wrong.

    You are supporting blatant book burning. And your only reasoning is because a judge said it was okay. You've been called out for your appeals to authority in the past. And yet you still do it.

    We're not arguing what the judge said. We're arguing what actually happened here, and what happened here is that a book got banned. That's censorship. And it got banned not because it copied any actual expression, but because it copied a concept. That's exactly what copyright law is not supposed to do, and if you want an appeal to authority, look back at the historical nature of the idea/expression dichotomy. This ruling is morally repugnant. That you support it based on nothing more than "the judge said it's a copy" is morally disgusting.

    Honestly. I can deal with a lot. You disgust me. I simply cannot stand people who think that it's okay to ban books. Sickening. Outright sickening.

     

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    average_joe (profile), Sep 17th, 2010 @ 5:14am

    I haven't read the book, Mike, so all I had to go on was what you said, and what the District Court/Court of Appeals said. Believe it or not, I'll take a federal judge's word over yours any day. I'll take a panel of federal judges over you any day ten times faster.

    A unanimous panel of federal judges said that what you're saying is "manifestly meritless." Game. Set. Match.

    You didn't have a chance.

    You are supporting blatant book burning.

    Good grief, Mike. I told you I'm rhetoric-proof. You clearly are not. Your whole life is buying into rhetoric. I prefer critical thinking and making up my own mind. You are the worst case of walking confirmation bias I've ever seen.

    That author is free to write about any idea, theory, or fact they want. I love this country because authors can do just that. In lots of places people don't have that freedom.

    The one thing you can't do is write sequels to other people's copyrighted books. And don't pretend like this wasn't clearly a sequel. It was. To say that it wasn't is "manifestly meritless."

    I value authors' rights a million times more than you do. Anyone reading this can see that that's true. I believe that it's an author's right to preclude other people from writing unauthorized sequels to their novels. That right belongs to the original author. That right exists morally and legally.

    Mike, would you be OK with a ban on a book that depicts child rape? Why or why not?

    Not all books get to exist. It's about balance.

    Balance is clearly something you don't understand. That's really sad. You seem like a bright guy. I'm surprised you don't get it.

    Save your rhetoric for someone else.

    You'll always be fringe, Mike. That's the cold, hard truth.

    You'll always be on the outside looking in, thinking "why don't they get it?"

    Sounds like a sad life to me.

     

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    Crosbie Fitch (profile), Sep 17th, 2010 @ 6:01am

    Re:

    People should be free to publish anything they like (without censorship), but only at liberty to publish that which violates no-one else's right.

    An intellectual work that was adjudged to incite violence against a person or class to maliciously endanger or jeopardise their life is such a violation.

    Further publication of the specific work being prohibited (banned) such that all are required to cease and desist from further distribution (despite being free to, uncensored) to avoid prosecution is an ethical measure.

    This is nothing to do with the privilege and reproduction monopoly that is copyright, which is an intrinsic rights violation.

     

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  184.  
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    Mike Masnick (profile), Sep 17th, 2010 @ 6:15am

    Re:

    It's not rhetoric, AJ. Writing a sequel to someone else's book is NOT copying their expression. It's building on their idea, and that's not supposed to be allowed due to copyright.

    I'm not asking you to compare what the judges said to what the book said. I'm asking you to actually think about the issue, rather than an appeal to authority.

    I value authors' rights a million times more than you do.

    That makes me laugh.

    One of these days, AJ, you'll learn how free speech works, and you'll realize that copyright works against free speech. It's sad that you so readily side with weak judgments. You might want to read some of the responses from 1st Amendment and copyright experts after that ruling came out.

    But no, to you, it's all about the judge, not about reason. Disgusting, as I said.

    You'll always be fringe, Mike. That's the cold, hard truth.

    :)

    AJ, perhaps you should learn, this isn't about popularity.

    You'll always be on the outside looking in, thinking "why don't they get it?"

    Oh, I know why people don't get it.

    You see to be quite confused over why I do what I do. Oh well.

    Sounds like a sad life to me.

    :) I'm the happiest guy around. Nice try, but you're barking up the wrong tree.

    Trust me, I'm not looking for some confused 2L's approval on issues that some of the most respected folks in the world agree with me about, and who some of the top content creators in the world reach out to me for help in understanding these issues on.

    I'm more "inside" than you'll ever be, because I'm actually helping these people. And I'm loving every minute of it.

     

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  185.  
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    average_joe (profile), Sep 17th, 2010 @ 6:30am

    Re: Re:

    I'm glad you love what you do. So do I. Have a great day, Mike. :)

     

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    average_joe (profile), Sep 17th, 2010 @ 6:32am

    Re: Re:

    Careful. You'll be labeled a "book burner." LOL!

     

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    Crosbie Fitch (profile), Sep 17th, 2010 @ 6:50am

    Re: Re: Re:

    I'm discussing the distinction between prohibiting the communication of certain works 'because they violate natural rights' vs 'because they infringe commercial privileges'.

    There's nothing about destruction there.

    Everyone has the natural liberty to share and build upon mankind's culture, and that includes telling each other's stories and improving or extending them. This happened with folk tales prior to copyright and when copyright's abolished it will happen again.

    Only unscrupulous lawyers will say that given a large enough budget to obtain clearance and procure necessary 'rights' (aka license to have their own liberty back) people can continue to feel at liberty extend each other's stories even under the increasingly draconian copyright regime.

    Wealthy people perhaps... with consequently wealthy lawyers.

     

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    vivaelamor (profile), Sep 17th, 2010 @ 12:42pm

    Re: Re: Re: rights via contracet

    "That's true, but it shouldn't be. This is one of the (many) ways that copyright holders have broken the contract."

    While I'd certainly favour your view, I don't think that the scope of copyright as set out in the Constitution is as specific as you suggest. The Constitution merely refers to an exclusive right, not an exclusive commercial right.

     

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    vivaelamor (profile), Sep 17th, 2010 @ 1:20pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Just to make sure you know, I was agreeing with you.

    I wouldn't worry about the two distinct uses of the phrase 'moral rights' though, that seems merely to be a product of two common words being used in different contexts. The distinction between moral rights and natural rights all depends on the given definition of both, in many contexts they may be considered the same thing. In philosophy they may vary between different schools of thought; law being generally based on philosophy would then tend to differ between jurisdictions.

    I tend to consider morality in general to be a distortion of reality by perspective, as any sane choice is a moral choice from the perspective of the maker. Thus the term 'moral rights' is to me to be merely a label given to something to make it seem definitive by proclaiming that everyone should agree.

    In the case of copyright I do not agree with the moral rights as set out in the Berne Convention, as they border on narcissistic. I do agree with moral rights that only protect the truth, such as attribution, which happens to also be what I would consider a natural right.

     

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    vivaelamor (profile), Sep 17th, 2010 @ 1:28pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    "I agree with him there, and that was my point. If the First Amendment superseded the Copyright Clause (and any law made under it), then there wouldn't be copyright. Instead, the two must be read together, each one giving way to the other. That's what the Court in Eldred was saying."

    I don't see why there couldn't be copyright that did not infringe on the First Amendment (regardless of whether I might support such a thing). Copyright as set out in the Constitution does not automatically infringe on the First Amendment. For example, in the case of the censored book, if it were possible to publish the book without making any money from it then that would not seem to infringe on the authors right to free speech. Thus you may still have a restriction on commercial use through the Copyright Clause, but without infringing on the First Amendment.

     

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    vivaelamor (profile), Sep 17th, 2010 @ 1:32pm

    Re: Re: Re: Re: The "balance" delusion

    "I've been trying to think of an answer that included the word incentivizing, but nothing's come to mind. ;)"

    That's the last time I try a self deprecating British joke on a US site.

     

    reply to this | link to this | view in thread ]

  192.  
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    average_joe (profile), Sep 17th, 2010 @ 1:51pm

    Re: Re: Re: Re: Re: The "balance" delusion

    LOL! That whole s/z thing never made much sense to me. Why don't you guys just give it up and use the z? :)

     

    reply to this | link to this | view in thread ]

  193.  
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    vivaelamor (profile), Sep 17th, 2010 @ 1:52pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    "I'm sure there were arguments on both sides, or else there wouldn't have been a case."

    I'm not interested in their arguments, I'm interested in how you can judge the matter without having read the book. I do not need to read the book as the very fact that I am unable to fulfils my argument, which is that you shouldn't censor books. You can defer to the courts judgement (again), but that was not what you appeared to be doing when you made a direct claim that he had 'stolen' Salinger's expression without cause.

     

    reply to this | link to this | view in thread ]

  194.  
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    vivaelamor (profile), Sep 18th, 2010 @ 12:59pm

    Re: Re: Re: Re: Re: Re: The "balance" delusion

    "LOL! That whole s/z thing never made much sense to me. Why don't you guys just give it up and use the z? :)"

    Because then Cambridge and Oxford would have one less thing to argue about, I guess. Mostly I think it's just because we're averse to change. Despite metric practically being the law we still use imperial measurements out of habit. I also rather think our decision to not join the Euro was based less on economic policy and more on a sense of national identity. Hell, we still have our royal family and plenty of people accept that seemingly on the basis that it'd be too much trouble to change things. Personally I think our tourist trade would do better without all the extra security needed to protect a bunch of people with no actual power or responsibility. How's that for a tangent? I should just move countries.

     

    reply to this | link to this | view in thread ]

  195.  
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    Anonymous Coward, Sep 19th, 2010 @ 11:36am

    Re: Re: Re: The "balance" delusion

    "Bad example. You are not being extreme enough. "Free all slaves" is not extreme. "Kill all slave owners" is extreme. "Bomb all countries which have slavery, and salt their earth so nothing grows on them anymore" is even more extreme. If anything, the abolition of slavery is the happy medium."

    So let's try this then:

    "Bad example. You are not being extreme enough. "Free all copyrighted works" is not extreme. "Kill all copyright owners" is extreme. "Bomb all countries which have copyright, and salt their earth so nothing grows on them anymore" is even more extreme. If anything, the abolition of copyright is the happy medium."

    You see, you've missed the point entirely. The point isn't that X and Y are the right extremes to find a midpoint between, the point is that just because something is in the middle of two positions doesn't make it right -- because you can always move the endpoints to put the middle where you want it.

    That is the "mistake" people who want fair copyright make. They take a reasonable position. Then their reasonable position gets "compromised" into the media industry's "eternal copyright with no exceptions" position and we end up moving further in the wrong direction.

     

    reply to this | link to this | view in thread ]


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