Internet Archive Files Opening Brief In Its Appeal Of Book Publishers’ Win
from the let-the-library-do-what-libraries-do dept
A few weeks ago, publishing giant Penguin Random House (and, yes, I’m still confused why they didn’t call it Random Penguin House after the merger) announced that it was filing a lawsuit (along with many others) against the state of Iowa for its attempt to ban books in school libraries. In its announcement, Penguin Random House talked up the horrors of trying to limit access to books in schools and libraries:
The First Amendment guarantees the right to read and to be read, and for ideas and viewpoints to be exchanged without unreasonable government interference. By limiting students’ access to books, Iowa violates this core principle of the Constitution.
“Our mission of connecting authors and their stories to readers around the world contributes to the free flow of ideas and perspectives that is a hallmark of American Democracy—and we will always stand by it,” says Nihar Malaviya, CEO, Penguin Random House. “We know that not every book we publish will be for every reader, but we must protect the right for all Americans, including students, parents, caregivers, teachers, and librarians to have equitable access to books, and to continue to decide what they read.”
That’s a very nice sentiment, and I’m glad that Penguin Random House is stating it, but it rings a little hollow, given that Penguin Random House is among the big publishers suing to shut down the Internet Archive, a huge and incredibly useful digital library that actually has the mission that Penguin Random House’s Nihar Malaviya claims is theirs: connecting authors and their stories to readers around the world, while contributing to the free flow of ideas and perspectives that are important to the world. And, believing in the importance of equitable access to books.
So, then, why is Penguin Random House trying to kill the Internet Archive?
While we knew this was coming, last week, the Internet Archive filed its opening brief before the 2nd Circuit appeals court to try to overturn the tragically terrible district court ruling by Judge John Koeltl. The filing is worth reading:
Publishers claim this public service is actually copyright infringement. They ask this Court to elevate form over substance by drawing an artificial line between physical lending and controlled digital lending. But the two are substantively the same, and both serve copyright’s purposes. Traditionally, libraries own print books and can lend each copy to one person at a time, enabling many people to read the same book in succession. Through interlibrary loans, libraries also share books with other libraries’ patrons. Everyone agrees these practices are not copyright infringement.
Controlled digital lending applies the same principles, while creating new means to support education, research, and cultural participation. Under this approach, a library that owns a print book can scan it and lend the digital copy instead of the physical one. Crucially, a library can loan at any one time only the number of print copies it owns, using technological safeguards to prevent copying, restrict access, and limit the length of loan periods.
Lending within these limits aligns digital lending with traditional library lending and fundamentally distinguishes it from simply scanning books and uploading them for anyone to read or redistribute at will. Controlled digital lending serves libraries’ mission of supporting research and education by preserving and enabling access to a digital record of books precisely as they exist in print. And it serves the public by enabling better and more efficient access to library books, e.g., for rural residents with distant libraries, for elderly people and others with mobility or transportation limitations, and for people with disabilities that make holding or reading print books difficult. At the same time, because controlled digital lending is limited by the same principles inherent in traditional lending, its impact on authors and publishers is no different from what they have experienced for as long as libraries have existed.
The filing makes the case that the Internet Archives use of controlled digital lending for eBooks is protected by fair use, leaning heavily on the idea that there is no evidence of harm to the copyright holders:
First, the purpose and character of the use favor fair use because IA’s controlled digital lending is noncommercial, transformative, and justified by copyright’s purposes. IA is a nonprofit charity that offers digital library services for free. Controlled digital lending is transformative because it expands the utility of books by allowing libraries to lend copies they own more efficiently and borrowers to use books in new ways. There is no dispute that libraries can lend the print copy of a book by mail to one person at a time. Controlled digital lending enables libraries to do the same thing via the Internet—still one person at a time. And even if this use were not transformative, it would still be favored under the first factor because it furthers copyright’s ultimate purpose of promoting public access to knowledge—a purpose libraries have served for centuries.
Second, the nature of the copyrighted works is neutral because the works are a mix of fiction and non-fiction and all are published.
Third, the amount of work copied is also neutral because copying the entire book is necessary: borrowing a book from a library requires access to all of it.
Fourth, IA’s lending does not harm Publishers’ markets. Controlled digital lending is not a substitute for Publishers’ ebook licenses because it offers a fundamentally different service. It enables libraries to efficiently lend books they own, while ebook licenses allow libraries to provide readers temporary access through commercial aggregators to whatever selection of books Publishers choose to make available, whether the library owns a copy or not. Two experts analyzed the available data and concluded that IA’s lending does not harm Publishers’ sales or ebook licensing. Publishers’ expert offered no contrary empirical evidence.
Weighing the fair use factors in light of copyright’s purposes, the use here is fair. In concluding otherwise, the district court misunderstood controlled digital lending, conflating it with posting an ebook online for anyone to access at any time. The court failed to grasp the key feature of controlled digital lending: the digital copy is available only to the one person entitled to borrow it at a time, just like lending a print book. This error tainted the district court’s analysis of all the factors, particularly the first and fourth. The court compounded that error by failing to weigh the factors in light of the purposes of copyright.
Not surprisingly, I agree with the Internet Archives’ arguments here, but these kinds of cases are always a challenge. Judges have this weird view of copyright law, that they sometimes ignore the actual law, the purpose of the law, and the constitutional underpinnings of the law, and insist that the purpose of copyright law is to award the copyright holders as much money and control as possible.
That’s not how copyright is supposed to work, but judges sometimes seem to forget that. Hopefully, the 2nd Circuit does not. The 2nd Circuit, historically, has been pretty good on fair use issues, so hopefully that holds in this case as well.
The full brief is (not surprisingly) quite well done and detailed and worth reading.
And now we’ll get to see whether or not Penguin Random House really supports “the free flow of ideas” or not…
Filed Under: archives, controlled digital lending, copyright, ebooks, fair use, lending books, libraries, transformative use
Companies: hachette, internet archive, penguin random house
Comments on “Internet Archive Files Opening Brief In Its Appeal Of Book Publishers’ Win”
'You can't ban books, that's how we make our money!'
So, then, why is Penguin Random House trying to kill the Internet Archive?
Book bans means they’re not selling any of the affected books.
The existence of libraries mean they only sell a particular copy of a book once and multiple people can read it without having to each pay for their own copy.
Suing the Internet Archive while objecting to a book ban makes clear that Penguin Random House’s only guiding principle is ‘whatever makes us the most money at the time’. If a book ban somehow made them more money I’ve no doubt whatsoever that they would jump right on supporting that without hesitation.
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And more books to people who decide, that after reading the book, they will but their own copy, and other books by the same author.
Re: Re: Some companies aren't too great at the whole 'long-term planning' thing
Well yeah, but that would require them to think past the immediate moment and when you’re a company who’s only concern is ‘how much money am I making right now?’ a steady stream of future sales is irrelevant, all that matters is the people who aren’t currently buying your product because there’s a free/already paid for version available.
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It’s interesting to me… I’ve borrowed a LOT of eBooks I’d never have had access to otherwise. On a number of occasions, this has resulted in me not just buying the print version of THAT book, but buying numerous other books by the same author.
Taken from the “every download is a lost sale” angle, I’ve cost book publishers hundreds of thousands of dollars over the years.
Taken from the “this is the money I’m willing to spend on stuff other than food, clothing and housing” angle, the availability of eBooks through lending libraries has netted the publishers thousands of dollars they would not otherwise have seen, directly from me. And then there’s the people I recommend books to, both by title and author, AND by sending them a shareable link to the lending library eBook. Many of THOSE convert into sales as well.
This is money the publishers don’t have to spend on, well, publicity, because the libraries and patrons are doing it for them. And honestly, I haven’t really been influenced directly by publisher marketing in years; I don’t check the NYT bestseller list and I don’t visit bookstores. or go places that show ads for new books and authors.
So these publishers are demonstrably exchanging real continual flows of actual profit for the stemming of fictional losses, at least in my case.
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It's not a "ban"
Government never “bans” a book from a government library, which includes school libraries. Those libraries are part of government. It is government choosing not to carry certain books. (usually, to avoid showing porn to minors) You can think whatever you want of that, but it’s definitely not a “ban”.
By the same logic, any library or book store would be “banning” any book they didn’t carry, which in any given case is “most of them”.
Yes, journalists routinely call these “bans” but most journalists are basically part of the propaganda wing of the democrat party.
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Most book stores will order any book in publication for you, while school library bans mean that the book is not even available through an inter library loan. Also, one is a commercial decision, while the other is a political decision. Try harder to find real comparisons and equivalents.
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So? They want to make money, capitalism is great. And Amazon, by FAR the largest, certainly does refuse to allow certain books to be sold for political reasons. (all leftist) Directly by themselves or third party sellers on their site.
Again, so? The contents of public libraries are directly subject to politics. That’s the part that you don’t like, you just want them to be subject to YOUR politics, and not the other guys, which is unironically kinda fascist.
I’m pretty sure I’ve drawn exactly the right comparisons, actually, you just don’t like them. (cuz you’re kinda fascist)
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Public libraries shouldn’t be making decisions about what viewpoints are “acceptable” for all patrons based on the whining of a bunch of right-wing fascists who think their being offended at the existence of a book means everyone else shouldn’t have the right to read that book. And the removal of a book from a public library is taking away an opportunity to read that book from someone who may not have the resources or ability to get that book themselves. That is denying citizens a chance to receive information, even (and especially) if it offends others. That is effectively an abridgement of the general principles of free speech, even if the law doesn’t recognize that abridgement as unlawful.
Bans on books are about fear—fear of knowledge, fear of growth, fear of losing control of something (or someone). The public libraries that engage in such bans because of shitheaded conservatives who want to enforce their morality on everyone else should be shamed for their cowardice; the shitheads who push those bans should be shamed for their fascist actions.
As for school libraries: I’m not opposed to limiting books to “age-appropriate” content, but I am opposed to people who think the mere existence of queer people—presented in the most anodyne and non-sexual way possible—is tantamount to the kind of religious proselityzing that conservative Christians want to enact in schools nationwide.
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I mean, of course they should, or in this case have that decision made for them by voters.
You Literally just mean people who disagree with you, including me, and generally the far-left definition of “fascist” seems to be about half the country, who is a lot of ways are remarkably less totalitarian than said lefties.
Regardless, those people are voters too, no matter how many times you scream “nazi” at them, and they have just as much right to decide what the government owned library should carry.
This is the general argument for public libraries, yes. That has nothing to do with anything else you’re saying beyond that you’re trying to make hyperbolic emotional arguments.
Still not a ban, and none of your ranting makes it a ban. If you think it’s really important that children be shown gay porn or whatever, you are free to try to effect that through the democratic process. But yes, the content of public libraries is absolutely subject to that.
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In which case, I’m sure you won’t mind if a public library decided to pull books written by conservatives because of their viewpoints or pull To Kill a Mockingbird because of all the racial slurs. After all, I didn’t say a public library should be able to pull books based on the viewpoints presented within—you did.
Fascists are people who try to enforce an ideology on others by force of law and acts of violence, often counting on one to back up the other. The people who demand the pulling of books by/about queer people from library shelves because those books are by/about queer people—regardless of whether the books have any sexual content—are fascists.
You can disagree with me about whether you think a given book is good. But trying to stop me from being able to read that book because you didn’t like its content for any reason is fascist behavior. After all, I’m not the one who thinks books that go against my sociopolitical ideology should be yanked off library shelves—you are.
They should have the right to ask a library to not stock a certain book, yes. They shouldn’t have the right to get the government to force that library into yanking that book from the shelves, and certainly not because they disagree with the sociopolitical views of that book. No library should ever pull a book from its shelves only and specifically because of the political leanings of the content in that book. I don’t want to see a conservative-leaning book yanked off library shelves only because it leans right; that you can’t say the same about books with liberal-leaning content is your problem.
And yet, you can’t think up a single cogent counterargument to my point besides saying “you’re appealing to emotion” and admitting I have a point. Sucks for you, son.
I’m not the one who thinks books should be yanked over politics or has a problem with books by/about queer people even if the content therein is completely non-sexual. That’s your problem. Shit, man, I’m a little surprised you haven’t suggested burning those books you want gone to make sure they’re gone forever—I mean, your fellow fascists are already burning books.
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Of course I might mind (it depends). That’s the thing about democracy, generally — 0% of people get everything they want.
You fucking idiot, they already do this (and huckleberry finn) almost solely at the demands of identity politics liberals.
No, no, you literally just mean people who disagree with you. Because you are all about forcing your ideology on others through force of law, including making shared libraries stock the books you would like and making the bakers bake the cakes would like. We haven’t discussed it but I only assume you were in favor of de facto forcing people to get vaccinated. You love using laws and government force to get your way.
Your crying about “acts of violence” is equally hilarious cuz you’re quite supportive of the “free Palestine” folks (who have been quite violent) and BLM riots. You’ll talk FOREVER about a few hundred people with tiki torches ONE TIME, but but THOUSANDS and THOUSANDS of people doing much worse EVERY weekend for the past 2 months and you want to talk only about the “violence” of your political enemies.
“Fascist”, “Nazi”, “Racist”, “bigot” have become mere political weapons to most of the left and you are a clear illustration of this.
I reiterate that you have the right to try to control the contents of public libraries through the democratic process, as does everyone else.
If you wish to bypass this democratic process you are the fascist.
I’m confused if it’s reading comp or basic logic that failed you here. (I suspect the latter) I literally said you didn’t make a point, which means no counterargument is required. You made an emotional appeal, which is pointless. You are legally and morally wrong.
Yeah, you are, actually, but it sounds like you are trying to conflate people not wanting porn in (public) schools with a bible belt preacher burning books….that he presumably owns. (either he bought them or or they were donated) You get that those have nothing to do with each other? No, of course you don’t.
You, too, can burn any books you own Stephen. No one will object. But you object to that guy burning books that he (or his church) owns….and you’re going to call him the fascist. That’s not how that works.
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And yet, you never raise the idea of “viewpoint discrimination” being used against conservative/right-wing viewpoints in any argument where you’re in favor of that discrimination when it happens to liberal/progressive/left-wing viewpoints. It’s almost as if you know that right-wingers are more than willing to overtake the gears of government and use them as tools of revenge against their ideological enemies instead of tools for the betterment of all the people they’re supposed to be governing. Imagine that~.
And yet, I’ve never seen you call out how wrong that is. I’m more than willing to shit all over the idea of “books like To Kill a Mockingbird deserved to be yanked from shelves because of racial slurs”. Why haven’t you shown the same courage until now, Matty?
I don’t, but keep whining.
I have never once called for any library to be forced to carry a book that agrees with my political ideology. If anything, I’d be (in your reality) the kind of person who would demand libraries yank conservative-aligned books off the shelves. But I’m not. Every library has the right to choose what books it will stock based on factors such as patron requests. I resent the idea that a given patron, based only on their personal political beliefs, should get to decide whether every other patron has a chance to read a book that said patron doesn’t like—and that applies equally for right-wingers and left-wingers.
As for the cake thing: You continually and intentionally forget that even before SCOTUS kicked the Masterpiece Cakeshop case on procedural grounds, every court that ruled against the bakery never forced the bakery to make a cake of any kind for the plaintiffs in the case. And the ruling wasn’t even about custom decorations (and therefore speech); it was about the plaintiffs being denied, based on their sexual orientation, access to the same basic menu of items that the bakery purported to serve to the general public (which includes queer people). Christ in Heaven, it’s like you have a bug up your ass that makes you scream “BuT wHaT aBoUt ThE cAkEs?!” every time someone mentions queer people. (You might want to see a doctor about that, by the by.)
I would’ve preferred if people hadn’t decided to buy into anti-vax bullshit, yes. But forcing people to get the vaccine goes against my belief in bodily autonomy. Vaccines make everyone safer if everyone who can get them does get them; that doesn’t mean everyone who doesn’t want to get one should be strapped to a gurney and poked with a needle for their refusal.
I support peaceful protests. I support the idea that innocent people shouldn’t be killed because they were born in (or live in) a certain place or have a certain skin color. And while I don’t support riots, I carry the understanding that, as MLK said, riots are the language of the unheard. Also: Remind me, who was it that rioted in Charlottesville and actually killed a woman, and who was it that rioted at the Capitol and injured dozens of police officers while trying to search for a man whose name they chanted after the word “hang”?
I haven’t seen images of riots and violence and “burning cities” in the United States over “every weekend for the past two months”. Sure, I’ve heard of people saying very questionable things about Israel and Hamas during what are largely peaceful protests. But I haven’t seen people doing shit like we saw in Charlottesville and the Capitol.
And what do you call it when people collude to fill the seats of a library’s board of directors or a city council or some other government agency with ideological allies only and specifically to bypass and corrupt the democratic process by making the removal of books a mere formality instead of an actual issue to be discussed? Because that smells like fascism to me. And last I checked, Republicans are the ones who are pulling that shit.
I said: “[T]he removal of a book from a public library is taking away an opportunity to read that book from someone who may not have the resources or ability to get that book themselves.” In response to that point, you said: “This is the general argument for public libraries, yes. That has nothing to do with anything else you’re saying beyond that you’re trying to make hyperbolic emotional arguments.”
“This is the general argument for public libraries” concedes my point about how removing books from libraries denies people access to those books, especially if they lack the resources to get the books themselves. “That has nothing to do with anything else you’re saying beyond that you’re trying to make hyperbolic emotional arguments” concedes that your only counterargument to my point is “emotional manipulation”, but clearly you’re not above trying to do that by calling me a fascist without any actual proof that I support fascist actions. I make points; you call me names. Try harder.
I’m not, but keep digging up in that hole you’re in.
Tell me how And Tango Makes Three is pornography. Tell me how the mere existence of queer people in a story makes a book inherently pornographic. Tell me why a book that has descriptions of queer people having sex is any more pornographic than a book that has descriptions of straight people having sex.
Yes, people who want books by/about queer people off the shelves because they’re offended at the idea of queer people existing and being treated like people aren’t that much better than book burners. They’re trying to force their beliefs onto everyone else by demanding that their morals dictate what books that everyone else gets to read. That way lies the madness of fascism—and where they burn books, they will burn people soon enough.
Oh, and since you’ll bitch at me if I don’t condemn the idea out loud: No, I don’t want pornography of any kind in a public or school library. To say I believe otherwise is to knowingly lie. And if you really want to take books with perverse sexual content off the shelves, you might want to start with the Bible, which contains a hell of a lot of obscene content.
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…hallucinated nobody who has ever once demonstrated evidence they are at all literate, ever.
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Wrong. Wrong. Wrong.
A library choosing what to stock or not stock itself is not banning books. But a government entity telling a library what it cannot stock is very much a ban.
The issue is who is doing the telling.
But, fine, if you want to go with your wrong definition, then isn’t it also true that social media sites choosing not to “stock” certain users isn’t censorship?
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The library is a government entity, you absolute moron.
A yes, government entities absolutely are subject to democratic action.
Wrong. Wrong. Wrong.
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Most public libraries are city or county operations. The laws being discussed are state laws. They are not the same government you total fucking buffoon.
Either way, it is still not even the slightest bit like a store choosing not to stock a certain book. This is an OUTSIDE ENTITY, even if part of a government, telling those closest to the users, what they can and cannot stock.
That is a ban.
And I’ll note you ignored my other point. Because it undermines everything you’ve been saying here for the past couple years. Fucking hilarious.
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Jesus wept, yeah, those are still part of government.
Yeah, so? ALL SORTS of state laws bind cities and counties. Very intentionally so, in fact, specifically to bind what those lesser entities can or cannot do. Usually, cities can’t pass any laws at all, only “ordnances” (usually around land-use). The role of counties varies by state but they’re mostly functional units and have no distinct laws.
Whether they’re the “same government” or not is kinda a definitional argument but they are absolutely, totally subservient to the state by design, you “total fucking buffoon”. They are not “outside”, at all.
Yeah, cuz it was dumb and made no sense even less than your first argument (which was just wrong). Gonna ignore it again, too.
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“of government” yes, but not the same one. That’s the point. It is still a ban, because you are having one gov’t ban (and yes, it is a ban) what a different operation, which is a part of a different government can do.
I thought you raging Republicans liked pushing governance to the most local levels? Or is that only when it gets you what you want?
Matt, it’s amazing how your principles will flip flop in a second so long as it gives you your preferred ideological outcome. It’s almost like you have no principles at all.
No, it made sense, because it was another example of how your principles change to match your desired outcome.
In one case, you claim that organizations looking to remove users is “censorship” but in the other case, you claim that organizations looking to remove books is not censorship.
The only way to make that consistent is to be a hypocrite.
But I will take your refusal to respond, and your kneejerk resorting to insulting, as an admission that deep in the recesses of your brain, you recognize your hypocrisy and that you cannot address it.
Thanks for confirming it though.
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No, actually. They’re not really a different government at all nor does it matter. It is completely normal for states to have control of local towns, including the content of the libraries. It’s a different level of government, not something completely separate. I assure you, there are already lots and lots of state laws dictating curriculum already, in every state.
No, actually. Books are not people, libraries can’t carry all the books but social media can and would like to host every person in the world, and not carrying a book (not even usually on viewpoint, btw, just literally that it is porn) is very different than banning another person who has agency for saying something you disagree with. For that matter censorship often involves bans but those aren’t the same thing either.
NONE of those comparisons made sense, just as state law isn’t somehow a completely different government which somehow makes it a ban.
You’re a just a fucking moron and your “points” are idiotic.
No, actually. Get lost.
btw I love how Masnick took about 18 hours to let my replies post. Classic.
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It is also completely normal for site owners to control the contents of sites, yet you cheer on the government and moan about site owners when the control content on their property.
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Hey Matty, the Vatican blesses same-sex unions now. But you and your boy toy Musk don’t qualify, because you’re trash.
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You illustrate that liberals are VERY hateful.
Also, ain’t it funny how liberals profess to care what the pope thinks? (I sure don’t)
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Nobody cares, jackass. Your comments are the ones that get hidden first, while mine are protected by laws against homophobia.
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Yes, you’re all very hateful. How was that unclear? “The Heckler’s veto” is often utilized as well.
That’s not a thing
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It’s funny how easily a comment can get under your skin. Sorta like a tick on mah hound dawg.
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Cope harder.
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There you go with your ridiculous attempts at changing what words mean again.
Let’s look at the definition of “ban”:
That’s from the Cambridge Dictionary by the way, in case you wanted to try to smear the source.
Newsflash, Matty: if the government gives an official order for libraries to not carry certain books, they’re preventing the libraries from loaning those books to readers.
It’s literally a ban by its very definition.
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Strawb, I am often surprised you can read.
An “order” in this sense, idjit, goes to someone else. The library is NOT someone else. It is part of government.
So congrats, the definition you cited refutes you.
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Nope. Internal orders are a thing. Internal bans are also a thing.
“Random Penguin House” would’ve required imagination, and publishers have routinely proved they don’t have any. Otherwise, they wouldn’t pull this protectionist BS.
“Hopefully, the 2nd Circuit does not.”
Don’t jinx it.
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Oops big mistake
I’m more in line with the other side of the tech industry. Like it or not, they broke the law. Nobody (generally) cared about the abandoned software and 50 year old movies. Most turned a blind eye to 1:1 lending.
But they ahot themselves in the head while hanging from a noose here. It’s a fight they can’t and won’t win. You can’t scan a book and then hand out 100 copies of it at once.
1:1 has always been a legal grey area. Home entertainment internal streaming devices have been around since the late 80s copying film or music to a hard drive and having a nice visual menu. People have been sued over it. Some lost, most settled, and the idea of one to one remains less than determined.
But simply nobody, even the free info movement, is going to jump behind the idea of mass distribution without payment. You can’t ‘loan’ a dozen copies of a current best seller when you purchased one copy.
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They didn’t, they lent the same copy dozens of times. You should also note, that over its lifetime, a copy of a paper book is read by more than one person, often into the tens of people, and I am talking about private purposes, not library purchases. Copyright is, or should be, about copying, not how many people get to read a copy.
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Nope, they loaned multiple copies at the same time during the pandemic, suspending the 1:1 ratio requirement.
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You’re incorrect. They suspended the limitations on simultaneous use during the pandemic. Hence it was no longer 1:1
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They’re loaning books 1:1. A library uploads a copy of the book online and can loan one copy of that book at a time. There’s no loaning of anything beyond a 1:1 ratio.
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They suspended that limitation during the covid pandemic. Allowing multiple people to access the book at the same time.
Copyright criminalizes speech and seems capable of getting around the First Amendment, with its guarantee of freedom of speech. No wonder it fits right into the censorship toolbox
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Copyright is actually enumerated within the constitution, before the first amendment. (you can argue lots of bad things have been done with the concept since in particular “a limited time” essentially being removed)
It is also not government regulating or penalizing speech, but rather setting the ground for private entities to seek redress. (THere are cases where government thinks it can copyright things, though, and that gets stupid real fast and I think should be ruled against by courts.)
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The U.S. constitution does not require copyright, though; it only permits Congress to pass laws establishing copyrights (and patents, etc.). Congress it still, in principle, bound by the Bill of Rights when it creates a system of copyrights.
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Once an infringing work has been made- and the government makes the decision which is infringing- how do you un-make it? How do you punish the criminal who created the work, if he were willing to sacrifice so much just to make it? Are the people who enjoyed the work also criminals?
Also, if the work in question is displayed in say, Dublin or Tokyo what would an American judge be able to do against foreign nationals?
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To be fair, they’ve tried to do a lot.
It mostly ended up being ineffective raging like a neckbeard losing a round of Call of Duty, mind you.
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Of course it would be ineffective, primarily because as a matter of policy, sovereign nations have means to try their own criminals in their own courts rather than agree to have them be kidnapped to stand trial in foreign nations. If the foreign national is guilty of infringement, then he’ll be tried near his own home.
Also, wouldn’t said American judge took the side of kidnapping foreigners to get “justice” then he is simply doing the work of prosecutors.
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First, subsequent amendments take precedence over the initial text.
Second, the constitution permits Congress to establish copyright and patents; it isn’t an obligation.