When a person's whole job revolves around managing and licensing a catalogue of copyrights, it's hardly surprising (if still disappointing) when they freak out about unauthorized sharing. So it's really nice to see someone in that exact position taking the opposite tack, as recently happened when a comparative Then & Now photo of Meryl Streep (which demonstrates that she may be some kind of magical ageless faerie) shot up the Reddit charts (thanks to Andy for sending this in):

The 1979 photo is by famous pioneer-paparazzo Ron Gelella. The archive director for the company that manages his copyrights saw the image and showed up in the Reddit comments... with additional info and a link to related photos. This garnered a very positive reaction from the community:

As you can see, this prompted an AMA, which is interesting in itself, featuring lots of conversation about how the internet has changed the paparazzi business and the differences between modern paparazzi and early ones like Gelella.

I wouldn't be surprised if all this exposure led to some print sales for the company—though what would be really cool is if they started working on some additional interesting offerings. There is apparently a huge amount of interest in Gelella's photography and perhaps even more in his anecdotes, not to mention a lot of people who want to jump into the moral debate surrounding the paparazzi. The archivist is clearly skilled at connecting with fans, and I bet they can come up with some great reasons to buy, too.

There are search engines for just about everything. Computers help people find all sorts of things faster and easier, so it's not surprising that computer dating is decades old (and started out with punch cards). Technology has gotten a lot better, but has online dating really improved that much?

• Online dating sites claim to be able to find soul mates, but studies suggest they can only provide introductions -- and more often than not, they instill a "shopping mindset" which is not conducive to building lasting relationships. Some psychologists even doubt the possibility of creating algorithms that could successfully match people for real romance. (But experts also scoffed at the first chess-playing computers, too.) [url]
• In 2005, Steven Carter, the director of research at eHarmony, described how his work to create predictive models for compatibility became the basis of his dream job. Carter is probably a bit biased, so where is some peer review for eHarmony's research? [url]
• Perhaps some intense linguistic analysis can predict dating success. Apparently, people who have similar speech patterns are more likely to date each other. Watch your use of pronouns, folks.... [url]
• To discover more interesting tech-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

It's almost becoming a rule in the tech industry, that actually doing something that people want to use absolutely guarantees that you're going to get sued for patent infringement. It's pretty clear that the current patent system is acting as a massive tax/tollbooth on innovation. The latest in a long line of examples: just as Google has been rolling out its Google Drive offering to users, it's been hit with a patent infringement lawsuit from a company with a patent (5,918,244) that covers a "method and system for coherently caching I/O devices across a network." As the lawsuit notes, the technology behind the patent is to enable the ability of "multiple computers [to] all communicate with each other and... all access data from the same data storage device or devices, such as hard disk." Basically, the patent describes a system of RAM caching. Because I'm sure no one ever would have figured out how to do that without the patent system... So, rather than just allowing the technology to progress in the market as new products are developed, we're left with legal fights and a tollbooth on innovation.

Okay, I know it was just two days ago that we announced the Techdirt Book Club book for June (and, a reminder that tomorrow at 1pm PT/4pm ET, we'll be holding a Q&A with Patricia Aufderheide for the Techdirt Book Club book for May), but today we're "pre-announcing" the Techdirt Book Club book for July. And that's because if you want to get a free hard copy of the book, you can enter a giveaway starting today. You may remember, a few months back, Rob Reid (founder of Listen.com, among other things) got plenty of attention for his rather humorous talk about copyright math. And, earlier this week, we wrote about his op-ed for the WSJ concerning ways to compete with "free."

But none of that compares to Year Zero, Reid's new novel, which is being released on July 10th. It's all about aliens who go bankrupt after they realize they owe the record labels more money than exists in the universe, because they got hooked on our music, and shared that music with other aliens. Rob has released a video trailer as a teaser for the book, which is quite amusing:
I've had a chance to read the book, and I can say that it's awesome. Think Hitchhikers Guide to the Galaxy, but with copyright law driving a major plot line. A mainstream humorous sci-fi novel that uses the Berne Convention as a key plot point and tosses aside casual references to Larry Lessig and Fark? Yes. Count me in. And, unlike most novels that bring up copyright, this one gets the legal issues mostly right (there is one point where trademark and copyright get confused, but it's so minor, you'll let it slip).

Anyway, as we said, this will be the Book Club book for July, and we'll be doing some fun things with Rob to have him engage with everyone here—but, if you're lucky, there's a chance for you to get a physical copy of the book delivered a month before it's actually released. Rob has the details on his blog, but basically you have to let him know (via a comment on his blog, a tweet or a Facebook comment) what song you'd like to beam to the aliens. Thirty winners -- ten from the comments, ten from Twitter and ten from Facebook (though you can enter all three) -- will be chosen at random to get books. So, go ahead and beam some songs to aliens. And just hope the RIAA doesn't claim that you're "inducing" infringement by doing so...

We've written about the tangles of singer Fiona Apple and her label, Epic (a Sony imprint), for years. Back in 2005, Epic refused to release her album, because it "didn't hear a hit." Instead, the album leaked and started getting radio play, which got fans excited and, finally, Epic felt compelled to release it. The NY Times recently had an article about her latest album, which has actually been done for well over a year, but has been "held up" by shakeups at the label. However, what may be most interesting is a section where they talk about her recent appearance at SXSW, where her management basically told Epic to stay the hell out of the way and not do anything:

“The Idler Wheel” is counting on the devotion of Ms. Apple’s fans. Before she appeared at South by Southwest her manager, Andy Slater, said he told Epic Records: “ ‘I want you to do nothing.’ I said: ‘Don’t make any posters. Don’t make any cards. Don’t put out a single. Just don’t say anything. Let her play the show. It’s been a few years. Let kids go to the show, film the thing, put it on their blogs, and you don’t need to do anything.’ ” Almost immediately after her set amateur video clips were on YouTube.

There are a few interesting things here. First of all, we're always told that musicians need the big labels for "marketing" purposes. Yet, here's an artist specifically recognizing that the way a label does marketing can actually make things worse, not better. On top of that, what she (or her management, in this case) clearly recognize is that the way to really do "marketing" these days is to connect with fans and then trust them -- not treat them as criminals. Notice that no one wanted the label to release a video or put the music on YouTube. Instead, they full expected and were happy with the fact that the fans filmed the show and put it on YouTube. The same YouTube that is still being sued for a billion dollars for letting people do that. The same YouTube that people tell us needs to be more proactive in preventing the fans from doing exactly what they did and exactly what Apple appears to have wanted them to do.

There's a big point here. If we shut down sites like YouTube, or force them to pre-block any and all content without proof of copyright or license, this kind of very, very successful marketing wouldn't be possible. Instead, you'd have nothing but Epic doing its thing -- which everyone seems to recognize would lead to a worse result for the artist...

We've talked for a little while now about the fears that the UN's ITU (International Telecommunication Union) is seeking to effectively "take over" the internet. In the last few weeks, this has received some (welcome) new attention, including from US officials who worry about what an ITU-managed internet would look like (hint: it would be a lot less open). Of course, now there's some backlash, with some people pointing out that the actual threats here are "vague." First of all, that's not necessarily true. It's not difficult to actually put together a decent list of possible threats.

But what this really highlights is the true problem here, which is that whatever happens here is happening behind the scenes, in backrooms, without public scrutiny. And, if we're talking about regulating the internet that the public uses so much, that seems like a pretty big problem. Just as we've seen with ACTA, TPP, SOPA and lots of other things, a big part of the problem is the near total lack of transparency in what's being discussed around these ideas.

In an attempt to deal with this, Jerry Brito and Eli Dourado have hacked together and launched a new site to collect, host and distribute leaked information about the ITU's plans. With perfect timing, the first documents from the ITU, including some proposed language for International Telecommunications Regulations have leaked. Taking a quick skim, there doesn't appear to be that much of interest in the initial document leak (I reserve the right to change my opinion once I've had more time to read through it in detail...), but it's an important starting point. These documents and details need to be public and need to be discussed in public, rather than allowing internet governance be determined in a series of backroom deals.

You may recall that, back in April, we criticized a Department of Commerce/US Patent and Trademark Office "study" that claimed it was trying to "better understand" intellectual property by adding up all the jobs in "IP-intensive" industries. We had significant concerns about the report, in particular the reasoning behind the methodology of how it chose "IP-intensive" jobs (and why it thought that had anything to do with stronger IP laws).

The folks over at KEI have put the problems of the report into plain view by digging into the details of the methodology, and realizing that the vast, vast majority of these "IP-intensive" industries are actually coming from the trademark side of things. Now, that's fine, but trademark is an entirely different issue than copyrights and patents. And, even if we dig into the trademark side of things some big questions are raised about the methodology. For example, in counting up all these jobs, what "IP intensive" industry employs the most people? Grocery stores.

According to the report, the number one IP intensive industry in terms of employment is “grocery stores,” with 2.5 million jobs. The six industries with more than a million jobs are the following:

1. Grocery stores, 2.5 million
2. Depository credit intermediation, 1.7 million
3. Computer systems and designs,. 1.6 million
4. Insurance carriers, 1.4 million
5. Management and technical consultants, 1.2 million
6. Clothing stores, 1.1 million

These are just a few of the industries the Department of Commerce calls IP-Intensive: Oil and gas extraction, Residential building construction, Grain and oilseed milling, Dairy product manufacturing, Lessors of real estate, Gambling industries, Household and institutional furniture, Pulp, paper, and paperboard mills, Sporting goods and musical instrument stores, Travel arrangement and reservation, etc.

Now, we can argue over just how much grocery stores rely on IP protection, but I think most normal people would agree that even if we abolished IP laws, grocery stores would likely still exist. Would they employ a different number of people? Possibly, though I'm not sure the difference would be significant. The simple fact is that even if grocery stores do benefit from trademark law, the number of jobs at grocery stores that exist because of trademark laws is minimal. And yet all of them are counted towards this total number -- which is regularly being touted by the entertainment industry as proof as to how important stricter IP laws are.

But, you might be saying, you know what's missing from the list above? Yes, that's right: the entertainment industry. In fact, as KEI points out, the only sector in that list above that can "honestly" be described as "IP-intensive" is "computer systems and designs," and if you look, those were some of the folks arguing most vociferously against copyright law expansions like SOPA and for patent reform that reduced the impact of patents. To use those jobs as evidence of the need for a stronger IP regime is downright misleading.

KEI points out that when you look at the number of jobs in the industries that people normally think of as relying on IP, the numbers are much smaller... and even then are potentially misleading in terms of the need and reliance on actual IP laws:

Industries like these overwhelm the statistics on jobs for the more legitimate choices, such as Sound recording industries (just 36.4 thousand jobs), or Software publishers (259.8 thousand), making it seem as though the IP-Intensive industries are truly enormous employers.

[....]

It was also pointed out that while the Software publishing sector was a high wage sector, it was a relatively small employer of the professionals in its key occupations. For example, less than 5 percent of computer programmers work for Software publishers. What do the other 95+ percent of computer programmers do? Quite a few build applications and services than use various open source free software platforms, which are both inexpensive and easy to customize.

And, where is the growth for employment? For the computer, mathematical science occupations, the rate of growth is three times higher outside of the Software Publishers Sector than inside the sector. So what can USPTO or the Economics and Statistics Administration tell us about the relationship between IP and employment? Not much, other than grocery stores, insurance companies and oil companies use a lot of trademarks, and not many people work in the sound recording industry.

The report itself explicitly states that it is not designed to be used to support any particular policy. Yet since it's come out, and despite this ridiculous methodology, it is regularly cited by the MPAA, the RIAA and supporters of things like SOPA and ACTA as "proof" that we need these laws. In fact, Jamie Love from KEI notes that right after the event where they discussed these problems with the methodology of the report, and the fact that all these grocery store employees have been unwillingly drafted to claim they need more IP laws to protect the small number of jobs under the RIAA umbrella, he went to a meeting where a US trade official used the report to claim that it showed we needed to adopt ACTA:

After we left the TACD plenary where the IP and employment report was discussed, the TACD IP Policy Committee met with four US IP/Trade agencies, and three Directorates of the European Union. The meeting began with a US trade official telling us about this new employment study that showed the need for ACTA. No kidding. And, we will certainly continue to hear about this report, with very little understanding of how it was put together.

Before the report came out, the White House had reached out to me, and said that since they knew I was interested in these issues, they could set up an interview with the "economic experts" who put together the report. I tried to take them up on the offer. The response was so ridiculous and so embarrassing for the Department of Commerce that I have actually emailed them back asking them to make sure they really wanted me to run a story based on what was said. I'll have a follow up story soon, either with that response or (hopefully) with a more substantive discussion, should they reconsider.

We've been covering the ongoing series of fights concerning what happens to to all the data that was stored on the Megaupload servers. The government has wanted it destroyed. Some users have wanted access to their legitimate content. Megaupload wants access for its own defense. The MPAA has wanted it preserved in case it can be used to sue others. Megaupload wants access for the sake of its defense. Carpathia -- the hosting company -- just wants to stop paying $9,000 per day to maintain the servers and data.

However, as TorrentFreak notes, the MPAA's latest filing in this debate offers a very, very, very slight backtrack, in which it says that it kinda sorta would be okay with letting users have access to download their own content... but if and only if there can be a guarantee that not a single bit of infringement occurs as a part of that process. Oh yeah, and also so long as the Megaupload defendants don't get access either (though, it says that's a separate discussion for a separate legal filing).

...the MPAA Members’ position continues to be that if the Court is willing to consider allowing access for users such as Mr. Goodwin to allow retrieval of files, it is essential that the mechanism include a procedure that ensures that any materials the users access and copy or download are not files that have been illegally uploaded to their accounts, given that MPAA Members and other rights holders are certain to own the copyrights in many of the files stored on the servers. In addition, in no event should any Megaupload defendants or their representatives—who have not generally appeared in this proceeding, and who are not subject to the control and supervision of the Court—be allowed to access the Mega Servers under such a mechanism designed for the benefit of third party Megaupload users. Whether and under what conditions the Mega defendants should have access to the servers (again, assuming they are subject to the control of the Court) is a separate issue.

Of course, this assumes it's even possible to prevent 100% of infringement. Which it's not. And that's probably the point. The MPAA gets to pretend that it's being "reasonable" by saying some access is okay... but immediately including an impossible caveat on top of that. It's a neat way to pretend to be open to compromise, while really sticking to an extreme position.

In the latest round of the fight over how much Jammie Thomas-Rasset should pay for sharing 24 songs online, we have the federal government weighing in to say that $1.5 million for those 24 songs is perfectly reasonable and Constitutional. Must help that the White House Solicitor General was previously a litigator for the RIAA in the case, huh (though, he did not write the filing)?

If you don't recall, there are statutory rates for copyright infringement, which are ridiculously high, and it seems reasonable to question if those awards, which seem totally disproportionate to any "damages," could be seen as excessive under the Constitution.

The district court judge, Michael Davis, clearly felt so. Ditto Judge Nancy Gertner in the Joel Tenenbaum case. However, the government apparently is going to argue that the statutory rate is the statutory rate and we must respect that. The argument is basically the same behind the implementation for statutory rates in the first place. To paraphrase: "man, it's freaking hard to have to show actual damages (since there might not be any) and thus we shouldn't have to do that -- but should just be able to use these crazy high numbers." This argument seems silly frankly. It's basically saying that even if you could look at damages, you should never have to. That's a big part of the problem. It leads to cases like this where people are heavily pressured to settle just to avoid the risk of crazy high statutory damages.

But where the government's argument goes off the rails, is the idea that when it comes to statutory damages, there's never a due process question over whether the rates are excessive. That makes no sense, but it's the argument being made:

Contrary to defendant’s contentions, the Due Process Clause does not require that the statutory damage award be proportional to the actual harm defendant has caused the plaintiff. Defendant attempts to derive this rule from BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996). But as the district court held, Williams, not Gore, establishes the applicable framework for determining whether an award of statutory damages under the Copyright Act comports with due process.

Gore is inapposite. It imposes limitations on a jury’s authority to award punitive damages in circumstances where the legislature has not constrained the jury’s discretion. It thus requires that the jury award not be grossly disproportionate to the plaintiff’s injury or defendant’s misconduct. Absent such limitations, the Gore Court reasoned, defendants could not have fair, constitutionally sufficient notice of the magnitude of potential sanctions.

The Gore framework, however, does not apply to a statutory regime in which Congress has specified in advance the range of appropriate damages. In that circumstance, the statute itself supplies the constitutionally required notice deemed missing in Gore. Moreover, unlike jury awards of punitive damages, an award of statutory damages is based on legislative judgments that must be accorded deference by the reviewing court. Williams, not Gore, sets forth the appropriate standards for conducting such review.

To summarize this argument, it's that Congress can do whatever the hell it wants in setting statutory rates, and no one can ever question if those rates are "excessive." Effectively, it's saying that Congress doesn't have to obey the Constitution. That makes no sense. And yes, it relies on this Supreme Court ruling from 1919, which is a pretty narrow ruling, concerning conditions under which you could measure such regulatory fines against the due process clause. However, this argument really tries to make that case do a hell of a lot more than it was designed to do -- while also trying to pretend that a whole series of other cases involving excessive fines as they relate to due process don't matter.

Either way, the end result is that the administration is effectively saying that a $1.5 million award for sharing 24 songs isn't just perfectly legal and reasonable, but that it's what Congress intended. All it really does is reiterate just how out of touch the White House is to reality.

As you hopefully have heard already, a ton of Linkedin passwords were leaked online. They were leaked in encrypted forms -- and without associated usernames -- leading some to suggest there was no real threat for users, unless someone also had the full list of usernames as well. However, that doesn't seem quite accurate. Since the passwords were hashed but not salted, it's made it relatively easy for the passwords to be decrypted. Yes, the usernames haven't been released, but some are suggesting that whoever leaked the data probably only released this subset, because they had already decrypted a bunch of easier passwords (and probably had the usernames) and just needed "the crowd" to help decrypt the rest.

Linkedin took its time, but did admit that there was a breach, and reset those passwords. However, Congress is never one to miss an opportunity to grandstand. Rep. Mary Bono Mack was quick to jump up and announce that something must be done!

"How many times is this going to happen before Congress finally wakes up and takes action?" said Rep. Mary Bono Mack, R-Palm Springs, who heads a House Energy and Commerce subcommittee that has looked at online-privacy issues, in a statement. "This latest incident once again brings into sharp focus the need to pass data protection legislation."

Similarly, Senator Pat Leahy jumped in with a similar statement:

"Reports of another major data breach should give pause to American consumers who, now more than ever, share sensitive personal information in their online transactions and networking," Leahy said in a statement provided to The Hill. "Congress should make comprehensive data privacy and cybercrime legislation a top priority.”

First of all, it does appear that LinkedIn wasn't using particularly smart security techniques (no salting? really?). But would a law really change things? And Leahy's claim that we need "cybercrime" legislation, again doesn't seem likely to help "fix" anything. If anything, the "cybersecurity" legislation that's out there might make such data even more vulnerable, by making companies more encouraged to share information.

Yes, these kinds of data breaches are bad. And we should be concerned when we find out that a company as big as LinkedIn still uses such weak security practices. But does that really mean we need a law?

There's been a lot of talk lately about the fact that HBO's insistence on only offering its shows to cable susbcribers is driving a lot of people to piracy—many of whom have repeatedly said that they would gladly pay if HBO offered an on-demand service that's separate from a cable package. By now you may have heard about the latest expression of this growing sentiment: the Take My Money, HBO! campaign, encouraging would-be customers to tweet HBO with the monthly amount they'd be wiling to pay for such a service, which has been getting quite a bit of attention since its launch.

It's a good idea with a catchy hook, and I don't write this post to condemn it—but I do think that, ultimately, the truth of the matter is a bit different: while there's definitely a bunch of money being left on the table, it's not there for the taking, it's there for the earning. If HBO offered an on-demand service and it sucked (like if it was encumbered with pointlessly restrictive DRM) then it wouldn't have any impact at all—because, just as with any other content industry, the true goal is to actually compete with piracy by offering a superior alternative with a genuine reason to buy.

Luckily for HBO, competing with piracy should be really, really easy in this case. The real message that comes from all these people asking HBO to "take" their money is that they aren't satisfied with the pirated product. There are all sorts of drawbacks to pirated television: bad links, spammy sites, crappy videos, and the seeming eternity between when a much-anticipated show finishes airing and when it hits torrent sites and video lockers (in reality only about 10 minutes—but to true fans who want to participate in a shared event, it matters). All the people joining the Twitter campaign aren't saying they want to pay for a worse option, or even a similar option; rather, they know that HBO can easily offer a far superior option, since it has the first-hand access to the material.

HBO has already done the job of earning people's attention with its programming. Indeed, it's clearly done a damn good job of that part. But at the end of the day it's still a matter of earning their money by offering some true competition. Pirate sources have one thing going for them: availability. And availability is worth so much (when compared to HBO's highly restricted access) that all HBO's other advantages aren't enough for it to compete. But the moment it met the pirates on their own field and matched them on that one thing, it would have every other advantage in the book, and could quickly supplant the competition—and earning that money might be very nearly as easy as taking it after all.

Oh, where to begin with this one. Once upon a time, in an internet far, far away, there was a Facebook page and a blog (that barely anyone paid attention to) masquerading as some kind of grass roots upheaval in favor of the copyright cartels. It was called Creative America, and man was it terrible. But, as does occasionally happen, this silly land of false statistics and incomprehensible logic bred some interesting discussions between folks on either side of the copyright argument. One of the participants in favor of copyright was filmmaker David Newhoff, someone who I generally thought represented his ideas and opinions with sincerity and class.

Well, to hell with sincerity and class. Apparently you damned pirates and copyleft people are just like homophobic anti-gay-marriage zealots...or something.

It all starts off innocently enough on Newhoff's guest post for The Copyright Alliance (Does that make us the Pirate Empire? But wasn't Han Solo a pirate? I'm so confused). We've got everything you'd expect from someone supporting current copyright, from the wilfully ignorant claim that "Copyright and Free Speech coexisted peacefully for the entire history of the Republic", to the invocation of names like Lewis Black as champions of free speech and free enterprise because Black is "entitled to make a pile of cash" because he's a master at speaking out against the government. Nowhere do we see any actual statistics to back up these claims, of course. There's no long-form history of copyright with big blinking letters saying "No problems here, people". Nor do we have any actual financial data on where Lewis Black has made his money. Was it from the real copyright product, royalties from album sales? Or was it his live performances, tours, and appearances? I certainly don't know, because I don't have that data. And if Newhoff does have that data, he isn't sharing it.

But no matter, because these opinions-as-facts are merely the foundation for one hell of a whopper of a claim: anyone who thinks copyright can threaten free speech is exactly the same as a homophobic bigot. Don't believe anyone could conflate two completely separate issues so badly? Read on, my sweet, naive little zealots:

"Their position reminds me of another First Amendment stumper: that same-sex marriage threatens the Freedom of Religion. As alluded to in one of my recent posts the Kantian principle that your rights end where they infringe on the rights of another is logically implicit, if not explicit, in the broad, human rights established in our laws. In a nutshell, society functions because most of us agree that your pursuit of happiness does not extend to a right to, say, drive an ATV across my yard and tear up the garden."

Here's the setup for the false analogy. You have a foundation of law driven by the Constitution, the "pursuit of happiness", mixed in with a little literal "get off my lawn" attitude, and a cool ATV thrown in to keep the kids happy. Just keep this setup in mind, because we'll get to the problem in a moment.

"The craftiest of gay-marriage opponents will argue that legalizing these unions infringes on their rights to be Christian in America, which is tantamount to undermining religious freedom. Yes, anyone with two working brain cells can recognize that this isn’t sound reasoning so much as thinly veiled bigotry...Similarly, the copyright-threatens-speech proposal uses the illusion of reverse discrimination to suggest that when the producer exercises his copyright, this somehow infringes on the consumer’s desire to reuse or “share” the work as he sees fit, which amounts to a “chilling effect” on speech. Like the same-sex marriage thing, this argument glosses over personal bias to foster a logical leap to a shaky conclusion. Copyright only threatens speech if we agree that the consumer’s right to reuse is more important than the producer’s right to treat his work as property."

And here's where this argument shows itself to be flawed. First, note the attempt to conflate copyleft and bigotry. This is all about setting up good guys and bad guys in the equation, and if you have a problem with copyright, it's "thinly veiled bigotry" and "reverse descrimination". Creators, apparently, are to be lumped into the same boat as other victims of bigotry, and if we can draw a direct line to homosexuals who have been descriminated against, it's an extremely short jump to slavery, interned Japanese Americans, or Jews in Nazi Germany. To borrow (INFRINGE!) a line from Newhoff's own piece, "this sounds dumb because it is". This is a discussion about economics, not bigotry.

Which is where we can point to the clear flaw in Newhoff's argument: yes, there's an argument that the "pursuit of happiness" should apply to all peoples, including the allowance of marriage. And it's also true that the "pursuit of happiness" can prevent me from driving an ATV onto David's well-manicured lawn. But unlike intellectual property, the "pursuit of happiness" was not specifically constructed and even denoted in the Constitution as having its key purpose be the benefit of society at large. The "pursuit of happiness" is personal. Conversely, copyright is supposed to chiefly benefit the public. Mixing these two aspects of our law is disingenous and the attempt to simply label the folks who don't agree with you as bigots is downright distasteful.