Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?

from the that-would-be-quite-a-thing dept

Yesterday, our most popular post involved a story of a questionable DMCA takedown notice leading to the shutdown of 1.5 million sites. This was not a first. We've written numerous times about bogus DMCA notices and the damage they can cause by censoring works without an adversarial hearing first. And one thing that always comes up is the question of whether or not there's punishment for bogus DMCA takedowns. In general, the answer has been no. There may be a few very specific circumstances under which whoever signed off on a bogus DMCA notice could be charged with perjury, but the specifics there are quite limited.

Now, one of the more famous cases concerning bogus DMCA takedowns -- which started all the way back in 2007 -- is heading back to court today, to see if Universal Music can be punished for issuing a bogus takedown on a woman, Stephanie Lenz, for posting a 30-second video of her toddler son dancing to Prince's "Let's Go Crazy." If you haven't seen the video, the song is barely audible, and the whole thing is a 29-second clip. There is a strong fair use argument.
The case has been taking the slow route through the court system, with Lenz (and the EFF) suing Universal Music for taking down the video without considering the possibility of fair use. Universal claimed that fair use is merely a defense, and thus there is no obligation to consider fair use first. The court, thankfully, disagreed, and said that damages were available, but quite limited.

And now... the arguments are kicking off over whether or not Universal Music should get in trouble for its actions. UMG, for its part, argues that it shouldn't have to run everything through a fair use filter first, and that even if it was required to do so, it probably couldn't. EFF points out the ridiculousness of saying there are no consequences to bogus tweets.
"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said [EFF IP Director Corynne] McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."
My guess is that the court won't punish UMG, arguing that it did all it needed to do. But it would be nice to actually put some teeth into rules that prevent abusing the DMCA to silence others' speech illegally.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Tim K (profile), Oct 16th, 2012 @ 11:00am

    So they don't know when things aren't infringing, they can't just throw videos through a filter to see if they are actually legal content, but Google should be able to do that, right?

     

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  2.  
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    yaga (profile), Oct 16th, 2012 @ 11:05am

    Re:

    I was just thinking the same thing.

     

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  3.  
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    The eejit (profile), Oct 16th, 2012 @ 11:10am

    Re:

    Yep. UMG has tons of processed handwavium.

     

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  4.  
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    Karl (profile), Oct 16th, 2012 @ 11:11am

    My guess is that the court won't punish UMG, arguing that it did all it needed to do.

    Unfortunately, I agree. UMG is making some extraordinarily dubious claims in its filings, but the plain fact is that Lenz and the EFF need to show that UMG did not even bother with a good faith attempt to determine that the video was not fair use. That's going to be a big hurdle to jump.

    I do hope I'm wrong, though. In cases like these, there absolutely needs to be some sort of remedy for the victims of bogus takedown notices.

     

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  5.  
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    Ben (profile), Oct 16th, 2012 @ 11:21am

    Re:

    My thoughts exactly

     

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    out_of_the_blue, Oct 16th, 2012 @ 11:25am

    Hyperbolic Mike!

    "Yesterday, our most popular post involved a story of a questionable DMCA takedown notice leading to the shutdown of 1.5 million sites."

    There wasn't ANY such question to the story as I read it: your characterization of it here and by whoever in that piece is just the usual exaggeration at Techdirt, but in fact, the ownership of the piece wasn't in question; at most, only whether printing ALL is "fair use". (Mixed with some irrelevant rabble-rousing ranting about the price charged and mainly, misplaced blame for the hosting company's silly over-reaction.)

    "My guess is that the court won't punish UMG, arguing that it did all it needed to do. But it would be nice to actually put some teeth into rules that prevent abusing the DMCA to silence others' speech illegally."

    Hmm. First, you'd have to establish "illegally", when seems was done "lawfully" through provided procedures. 2nd, LACK of music as background in no way constitutes "silencing" anyone's speech. -- YES, I know you'll say the total of the video was taken down, but so what? I lean increeasingly to the view that political or other weighty matter is speech, because otherwise all you have is a baby dancing, and what does that actually SAY? Some of us are still capable of discerning degrees of importance.

    So all I can say is legalisms cut both ways: that's why we should always focus on morality and common sense, rather than the narrow little box of privileges, procedures, and irrelevancies that lawyers try to force us into.

     

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  7.  
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    fiestachickens (profile), Oct 16th, 2012 @ 11:29am

    Re: Hyperbolic Mike!

    While I desperately want to agree with the morality and common sense point of view, I have to disagree with you.

    People's definition of what is "moral" and "common sense" differ all too frequently, even within a family! Something for me that is amoral may be totally moral for you.

    This slippery slope only ends with everything being illegal because someone, somewhere, may find something amoral.

     

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  8.  
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    out_of_the_mind, Oct 16th, 2012 @ 11:29am

    Re: Hyperbolic Mike!

    Ever heard of freedom of expression? Nah of course not.

    "in no way constitutes "silencing" anyone's speech."
    Speech is more than the spoken word. What a tool.

     

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    out_of_the_mind, Oct 16th, 2012 @ 11:30am

    Re: Hyperbolic Mike!

    "we should always focus on morality and common sense"

    When you get either, then come back.

     

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  10.  
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    Atkray (profile), Oct 16th, 2012 @ 11:34am

    Re:

    No you are wrong Tim.

    Google = Tech company

    UMG = Artists

    Obviously it is Google's responsibility.

    O_o

     

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  11.  
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    Anonymous Coward, Oct 16th, 2012 @ 11:36am

    UMG should be hit as hard as they hit others. i also, however, doubt if anything will be done simply because of how big UMG are and the money they will have thrown about. the travesty is, they want to be able to sue someone to the maximum allowed under the law when it suits them but get away with whatever they want when it issues false take downs, paying no compensation at all, let alone at the same rates they charge

     

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  12.  
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    Anonymous Coward, Oct 16th, 2012 @ 11:40am

    Re: Hyperbolic Mike!

    >Some of us are still capable of discerning degrees of importance.

    Agreed. By all means UMG's actions were completely over the top. It's not as though the music was an endorsement of some politically misleading message.

    >LACK of music as background in no way constitutes "silencing" anyone's speech. -- YES, I know you'll say the total of the video was taken down, but so what?

    So if the music was the only problem then, by all means, raise the issue. Not take the whole video down. This is as silly as torching a whole room to kill a cockroach.

    >So all I can say is legalisms cut both ways

    Both ways? On the one hand you have companies who are scared shitless about DMCA warnings and will kill off half their customer base just to make sure they're not in violation. On the other hand you have copyright owners who pretty much don't give two hoots about potential collateral damage, or whether copyright is actually being infringed, and send off notices willy-nilly regardless of whether it's warranted.

    Both ways? Don't make me laugh.

     

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  13.  
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    Keroberos (profile), Oct 16th, 2012 @ 11:40am

    Re: Hyperbolic Mike!

    Hmm...by your own admission Mike should ban you from posting and remove all of your previous posts, because I'm sure there are plenty of people on this site that would consider your speech here of low degree of importance.

    It's a good thing for you that most of us here believe in free speech for all--in particular those that we don't necessarily agree with.

     

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  14.  
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    Anonymous Coward, Oct 16th, 2012 @ 11:44am

    The MAFIAA do not wish to have to consider fair use as it eliminates the ability to automate take downs. It would also eliminate the threat of law suites to prevent competition.
    They do not wish to be held responsible for considering fair use as it would severely limit their ability to issue take down notices at the rate they think they need to tackle piracy. If they are held responsible then contentid gets shut down.

     

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  15.  
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    Anonymous Coward, Oct 16th, 2012 @ 11:46am

    Re:

    umm, all they had to do was WATCH IT...

     

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  16.  
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    Digger, Oct 16th, 2012 @ 11:47am

    Punishment for False DMCA claim - see below

    In this case, the copyright for the Prince song would revert to public domain, and they'd have to pay out the equivalent of a single copyright violation maximum fine to each person or person(s) they falsely accused. Plus they'd have to pay all legal fees on top of that.

    That would seem appropriate to me.

     

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  17.  
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    btr1701 (profile), Oct 16th, 2012 @ 11:53am

    Re: Hyperbolic Mike!

    > I lean increeasingly to the view that political or other weighty matter is speech

    Unfortunately you're leaning in the opposite direction from 200+ years of Supreme Court 1st Amendment jurisprudence, which has traditionally expanded-- rather than contracted-- the legal definition of what qualifies as speech.

     

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    average_joe (profile), Oct 16th, 2012 @ 11:57am

    Re:

    The court makes clear that the test is subjective bad faith. Considering the fact that UMG has shown that they had a human consider the fair use argument--twice--before taking down the material, I don't see how they could possibly be found to be in subjective bad faith. So it's not just a "big hurdle to jump," the claim against UMG is just not supported by the facts. That hasn't kept the EFF from pounding this case into the pavement.

     

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    average_joe (profile), Oct 16th, 2012 @ 11:58am

    Re: Re:

    umm, all they had to do was WATCH IT...

    And if you took a moment to familiarize yourself with the record of the case, you'd know that they did--twice.

    But TD doesn't let little things like facts or reality get in the way of anti-copyright hysteria.

     

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    average_joe (profile), Oct 16th, 2012 @ 12:00pm

    Re: Re: Hyperbolic Mike!

    expanded-- rather than contracted-- the legal definition of what qualifies as speech.

    Yeah, those stupid First Amendment lawyers got their greedy hands on it and stretched it way out past where it's supposed to be. Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!

     

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  21.  
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    Mesonoxian Eve (profile), Oct 16th, 2012 @ 12:01pm

    *puts an envelope to the forehead and replies "Here's what's going to happen."

    *rips open envelope and reads content.

    UMG will "lose" the case, and be awarded the maximum damage of $1500, per US law. UMG will cut a check to the plaintiff by taking it away from several artists, who'll never know because the charge will be filed under "Marketing".

    With these companies, you're unimportant if you don't look like a dollar bill.

     

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  22.  
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    redrum, Oct 16th, 2012 @ 12:15pm

    Ally McBeal?

    Does anyone else think of Ally McBeal when Dancing Baby Video is mentioned? I hated that show and that stupid baby video was everywhere at the time.

     

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  23.  
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    PaulT (profile), Oct 16th, 2012 @ 12:18pm

    Re: Re:

    "subjective bad faith'

    Surely I'm not the only one slightly disturbed by the existence of a possible court judgement that's admitted to be totally subjective in it's very name?

    "That hasn't kept the EFF from pounding this case into the pavement."

    If their behaviour is that clearly legal and inconsequential, why does this matter?

     

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  24.  
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    Anonymous Coward, Oct 16th, 2012 @ 12:20pm

    Re: Re: Re: Hyperbolic Mike!

    ... when it's the First Amendment, that's OK. But when it's intellectual property...


    There used to be a rule that all grants of monopoly were to be construed strictly against the grantee—and in favor of the public.

    That rule seems to have gotten lost somewhere around the late 1800s or so, although traces perhaps survived into the early 1900s.

     

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    average_joe (profile), Oct 16th, 2012 @ 12:23pm

    Re: Re: Re:

    Subjective means that the person actually believed it, versus objective which is what a reasonable person would have believed under the circumstances. The court in this case has said that it's a subjective standard. This means the EFF will lose the argument. All the intervening years of the case have been used for discovery, and what's come out is the fact that an employee at UMG reviewed the video twice before determining that there was prima facie infringement. That's good faith. This case is just a cause celebre trotted out by the anti-copyright zealots. They're all a bit fast and loose with the facts, of course. You don't Techdirt actually cares about facts when there's a good rant to be had, do you?

     

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    average_joe (profile), Oct 16th, 2012 @ 12:25pm

    Re: Re: Re: Re: Hyperbolic Mike!

    I'm just pointing out how silly it is that Mike rants about the expansion of IP, but he never complains about the similar expansion of the First Amendment.

     

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  27.  
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    Anonymous Coward, Oct 16th, 2012 @ 12:31pm

    Re: Re:

    While that is probably completely true, it is really highlighting the question of: Can there ever be a case of abusing the takedown-system if the claim is "reviewed" manually?

    It seems I can make a good disruptive business here as long as I claim that I am not doing it for the disruption. Different cases all the time will assure that I can keep that claim rolling as long as I do not overextend! And let's be honest, how many sue? 1 in 100.000?

     

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  28.  
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    Vic, Oct 16th, 2012 @ 12:32pm

    Re: Re: Re:

    Yeah, I like it - anti-copyright hysteria!

    I did not quite know how to call it, all that stuff I hear all the time on the radio, on the TV, and read in newspapers and journals... Now we know how to call it! ;^)

     

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  29.  
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    Below_Average_Joe, Oct 16th, 2012 @ 12:35pm

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    "expansion of the First Amendment."

    [Spews coffee from nose] Yeah right Joe. You've really flipped your lid today.

     

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  30.  
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    John Fenderson (profile), Oct 16th, 2012 @ 12:37pm

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    Why is that silly?

     

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  31.  
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    Another AC, Oct 16th, 2012 @ 12:39pm

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    That's because one is an apple, the other is an orange.

     

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  32.  
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    anon, Oct 16th, 2012 @ 12:49pm

    Re:

    I don't get this , they signed a form under threat of perjury, in other words it is there responsibility to check they are not making a mistake. How could they get away with a slap on the hand, they should be fined what someone who has committed perjury normally gets fined, or prison time in some cases I believe. Why is it that because this is a big business they get away with a slap on the hand but someone who is sharing 30 songs gets a million dollar fine, thus destroying there lives.

    With all due respect to the court they are making a mockery of the law and it is time that the wording be changed if under the threat of perjury does not mean what it clearly says.

     

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  33.  
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    PaulT (profile), Oct 16th, 2012 @ 12:50pm

    Re: Re: Re: Re:

    Of course, you could have explained that without launching into lies and personal attacks at the end, but some people seem to find that impossible I suppose.

    It's still a damn scary way of determining any legal judgement, though, so I don't see how that changes things. That's my subjective opinion of course...

     

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  34.  
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    Zakida Paul (profile), Oct 16th, 2012 @ 1:13pm

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Today? I think that happened years ago with this idiot.

     

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  35.  
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    harbingerofdoom (profile), Oct 16th, 2012 @ 1:23pm

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    explain please what there is to be concerned about in regards to the expansion of the first amendment?


    personally? i dont think you can.

     

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  36.  
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    average_joe (profile), Oct 16th, 2012 @ 1:38pm

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    LOL! Swoosh.

     

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  37.  
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    harbingerofdoom (profile), Oct 16th, 2012 @ 1:48pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    oh... so you are saying now that you actually have no idea what you were talking about?
    okay. now we know.... thanks for clearing that up

     

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  38.  
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    Mike Masnick (profile), Oct 16th, 2012 @ 2:01pm

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    I'm just pointing out how silly it is that Mike rants about the expansion of IP, but he never complains about the similar expansion of the First Amendment.

    Just gotta say, that this comment got my vote for funny...

     

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  39.  
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    Digitari, Oct 16th, 2012 @ 2:13pm

    Re: Ally McBeal?

    Dude! Yur OLD!

     

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  40.  
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    Keroberos (profile), Oct 16th, 2012 @ 2:24pm

    Re: Re: Re: Hyperbolic Mike!

    Yeah, those stupid First Amendment lawyers got their greedy hands on it and stretched it way out past where it's supposed to be.
    Hmm...How so?

    Here's the text of the First Amendment in its entirety:
    Amendment I

    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.
    Hmm...Nothing there describing what type of speech is free and what isn't. I guess maybe the founding fathers meant ALL speech to be free.

     

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  41.  
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    Keroberos (profile), Oct 16th, 2012 @ 2:27pm

    Re: Re: Re: Re: Hyperbolic Mike!

    And on an amusing related note--copyright, which is being used to stifle speech, is unconstitutional.

     

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    average_joe (profile), Oct 16th, 2012 @ 3:06pm

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Just gotta say, that this comment got my vote for funny...

    Just gotta say, it's not nearly as funny as the caliber of your "reporting" on this case.

     

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  43.  
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    btr1701 (profile), Oct 16th, 2012 @ 3:20pm

    Re: Re: Re: Hyperbolic Mike!

    > Yeah, those stupid First Amendment lawyers
    > got their greedy hands on it and stretched
    > it way out past where it's supposed to be

    And of course you are some kind of oracle of the ages and know better than anyone else "where it's supposed to be".

    You're a cartoon.

     

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  44.  
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    btr1701 (profile), Oct 16th, 2012 @ 3:23pm

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    > I'm just pointing out how
    > silly it is that Mike rants
    > about the expansion of IP,
    > but he never complains about
    > the similar expansion of
    > the First Amendment.

    Perhaps because the 1st Amendment is one of the Bill of Rights-- one of the fundamental rights guaranteed to the people-- and copyright is... not.

    It's generally considered a good thing when the people are given more freedom, and a bad one when the people have it taken from them. The 1st Amendment does the former, the Copyright Clause the latter.

     

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  45.  
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    btr1701 (profile), Oct 16th, 2012 @ 3:24pm

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    > Just gotta say, that this
    > comment got my vote for funny...

    Yes, in the absence of a 'moronic' button, funny is the best one can do.

     

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  46.  
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    Anonymous Coward, Oct 16th, 2012 @ 3:25pm

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    oh... so you are saying now


    The way I read “LOL! Swoosh” was:
    YHBT.   YHL.   HTH.   HAND.



    (If you need acronym translation, here's the major Jargon File entry and HTH. )

     

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  47.  
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    harbingerofdoom (profile), Oct 16th, 2012 @ 3:26pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    POT!
    hey man... its kettle.. long time no see dude! whatcha been up to?

     

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  48.  
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    Alana (profile), Oct 16th, 2012 @ 3:45pm

    Re: Re:

    ...Wait, wait, UMG are artists?

     

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  49.  
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    Anonymous Coward, Oct 16th, 2012 @ 4:17pm

    Re: Re: Re: Re: Hyperbolic Mike!

    I guess maybe the founding fathers meant ALL speech to be free.


    You know, as a somewhat honest legal historian, I'd have to point you to the Alien and Sedition Acts (1798).

    Now, it's true that those acts were controversial when they were passed, that they were the cause of the Virginia and Kentucky resolutions, that Jefferson later pardoned all those convicted, and that Congress voted to restore all of the fines paid—with interest.

    Nevertheless, we cannot forget that President John Adams had been a delegate to the Continental Congress, and assisted Jefferson in drafting the Declaration. Nor should we forget Alexander Hamilton.

     

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  50.  
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    average_joe (profile), Oct 16th, 2012 @ 4:31pm

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Perhaps because the 1st Amendment is one of the Bill of Rights-- one of the fundamental rights guaranteed to the people-- and copyright is... not.

    It's generally considered a good thing when the people are given more freedom, and a bad one when the people have it taken from them. The 1st Amendment does the former, the Copyright Clause the latter.


    Congress exercising one of its enumerated powers doesn't mean that someone's had their freedom taken away from them. Copyright is just a property right given to authors because ultimately that serves the public good. It doesn't take away anyone's freedom--it promotes it.

     

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    average_joe (profile), Oct 16th, 2012 @ 4:32pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Yes, in the absence of a 'moronic' button, funny is the best one can do.

    Where's the "washed-up-and-bitter government servant" button when I need one?

     

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  52.  
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    Milton Freewater, Oct 16th, 2012 @ 5:05pm

    Re:

    If they can't tell whether something is infringing or not, any takedown they ask for is perjury.

     

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    average_joe (profile), Oct 16th, 2012 @ 5:29pm

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    oh... so you are saying now that you actually have no idea what you were talking about?
    okay. now we know.... thanks for clearing that up


    The point was that Mike's an originalist or a living constitutionalist depending on what suits him. If copyright becomes anything that it wasn't in 1791, then that's a terrible thing and the work of evil lawyers (originalist). But if the First Amendment means anything today that it didn't mean in 1791, then that's great (living constitutionalist). His own theory of constitutional interpretation ebbs and flows with whatever conclusion he wishes to arrive at, i.e., he's working backwards as he always does.

    In hindsight, I guess my point was too subtle. The point is that Mike can't keep his analysis straight, and he'll just latch onto whatever theory arrives at the conclusion he prefers.

     

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  54.  
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    Milton Freewater, Oct 16th, 2012 @ 5:34pm

    Re: Re: Re: Re:

    "what's come out is the fact that an employee at UMG reviewed the video twice before determining that there was prima facie infringement."

    Employees at UMG do not determine whether infringement has occurred. The law does.

    And a judgement that is subjective and good faith is by definition not true on its face.

    The song was background noise to homemade news footage. Even if it does infringe, it is the opposite of prima facie infringement.

    Every post of yours seems to say the same thing - if a rightsholder says so, then it's so, and we all recognize this, so all dissenters are liars.

     

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  55.  
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    Milton Freewater, Oct 16th, 2012 @ 5:42pm

    Re: Hyperbolic Mike!

    " LACK of music as background in no way constitutes "silencing" anyone's speech."

    Requiring someone to alter documentary footage before they put it on any public forum cuts right to the heart of the First Amendment.

    I'm no lawyer, so I can't say how this will turn out, but if in fact UMG did act legally, the law needs to be adjusted. Our rights can't depend on the benevolence of corporations.

    To paraphrase Average Joe, UMG should not have authority to determine infringement. The law and the public do that, not an employee of UMG.

     

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  56.  
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    average_joe (profile), Oct 16th, 2012 @ 5:54pm

    Re: Re: Re: Re: Re:

    Employees at UMG do not determine whether infringement has occurred. The law does.

    You have it backwards. The whole point of the DMCA takedown notice is so that a good faith right holder can have content removed from third party services without the need for a trial. The DMCA allows the right holder to make a good faith claim about infringement. It allows the party that uploaded the material to file a counterclaim if they disagree with the right holder's claim. And most importantly, it allows third party service providers, like YouTube, to operate with next to no liability for copyright infringement.

     

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  57.  
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    Anonymous Coward, Oct 16th, 2012 @ 6:03pm

    It's a shame our corrupted congress could not see this coming with their hands over their eyes that it would be abused as it is with this case and provided excessive fines for the lack of observance to fair use.

    Funny how all those copyright extremists trolls here don't have anything to say about over reaching other than to back up who is paying their tab to troll.

    Over and over it is shown that it is abused at least weekly enough to make news. That says nothing of the often repeated but not exceptional enough violations that don't make the notice.

    The more this goes on, the more it looks as if it would be a smart thing to return copyright lengths to their previous earlier shorter terms and require that each copyrighted item by manually applied for as to it's protection.

     

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  58.  
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    Anonymous Coward, Oct 16th, 2012 @ 6:10pm

    In fact here is how out of control the industry is with it's claims of being about the artist.

     

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  59.  
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    Greevar (profile), Oct 16th, 2012 @ 6:18pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Hey, Mike might be a smarmy, chubby pirate apologist, but he's not a vindictive asshole like you!

     

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  60.  
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    Greevar (profile), Oct 16th, 2012 @ 6:33pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    There's a very important distinction that just flew by your misshapen head. The first amendment is an admission and protection of a natural right to which all other laws must yield to (i.e. a right that exists regardless of the laws we make). Copyright is a granted right that takes away from the rights protected in the first amendment and may do so as long as the trade-off is greater progress for the sciences and art. In short, copyright is subordinate to the first amendment and copyright must yield to the expansion of free speech, not the other way around.

    The point is average_joe, you can't keep your analysis straight and you'll just latch onto whatever theory arrives at the conclusion you prefer.

     

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  61.  
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    Greevar (profile), Oct 16th, 2012 @ 6:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Where's the "render average_joe incapable of human language" button when I need one?

     

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  62.  
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    average_joe (profile), Oct 16th, 2012 @ 6:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Hey, Mike might be a smarmy, chubby pirate apologist, but he's not a vindictive asshole like you!

    Yet he spends all day long "getting back" at anyone and anything pro-copyright. And he's so blinded by his hatred that he can't be intellectually honest. Not to mention that he's an absolute douchebag to anyone who dares to disagree with him. So, um, he's exactly a "vindictive asshole" as well.

     

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  63.  
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    Greevar (profile), Oct 16th, 2012 @ 6:39pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    You are totally nuts! Copyright takes rights away from one subset of the people (i.e. the general public) and gives it to another subset of the people (i.e. publishers and artists). It grants citizens power to control the speech of other citizens. That's not the promotion of freedom, unless you define "freedom" as enabling an otherwise insolvent business model.

     

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  64.  
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    average_joe (profile), Oct 16th, 2012 @ 6:50pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    copyright is subordinate to the first amendment and copyright must yield to the expansion of free speech, not the other way around.

    If copyright were completely subordinate to the First Amendment, then there wouldn't be copyright. Yet we have copyright precisely because the First Amendment gives way to it.

     

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  65.  
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    average_joe (profile), Oct 16th, 2012 @ 6:53pm

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    You are totally nuts! Copyright takes rights away from one subset of the people (i.e. the general public) and gives it to another subset of the people (i.e. publishers and artists). It grants citizens power to control the speech of other citizens. That's not the promotion of freedom, unless you define "freedom" as enabling an otherwise insolvent business model.

    As the Framers recognized, property rights promote the public good. Copyright in particular incentivizes the creation of expression, which promotes the public good. The anti-copyright zealots are missing the forest for the trees. Just think of all the great copyrighted works that are out there. There so wonderful that folks are willing to break the law to get them.

     

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  66.  
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    Anonymous Coward, Oct 16th, 2012 @ 6:53pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    It doesn't take away anyone's freedom

    Until it does, as highlighted by this very article.

    A mother videos her child dancing to a song. The song playing in the background happens to be a copyrighted song. The purpose of the video is nothing more nefarious than a mother wanting to share with others the joy she feels at seeing the joy experienced by her child dancing to the song.

    That is absolutely fair use. Yet in this wacky world we live in where copyright trumps everything else, it's somehow not.

    You know, considering the shaky relationship the copyright industry has with the public, they might think twice about this example and steer clear of it lest they find themselves even deeper in the reputation toliet. But, that's not how they operate. Such nuanced thinking is foreign to them. Unless every single usage (no matter how trivial and no matter what the context) is monetized six ways from Sunday, it's infringement and such usage has to be stamped out. It's piracy! PIRACY! IT'S GOING TO DESTROY US!

    Keep defending it aj. And continue to not be taken seriously.

     

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  67.  
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    average_joe (profile), Oct 16th, 2012 @ 7:04pm

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    I think it probably is fair use. But that doesn't mean that another person who views it and subjectively thinks it isn't is in bad faith. Given the multifactor analysis that turns on questions of fact and law, I'm not sure how anyone's conclusion of infringement when there's a colorable fair use argument could ever be in subjective bad faith.

    That said, it's not an impingement on her freedom to have her video taken down anymore than it is for me to have her arrested for swimming in my pool without my permission. Give me a break. You guys really got behind a silly case, and you're trying to blow it up into something it's not. I agree that they could have left the video up. I also think that they were in the right to challenge it since there is a prima facie case of infringement.

     

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  68.  
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    Greevar (profile), Oct 16th, 2012 @ 7:08pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Wow, that's a nice little piece of fiction you've got there, but we all live in a little place called "reality".

    Mike actually can be perfectly respectful to someone who has a disagreement with him. I disagreed with him and he wasn't an asshole to me. https://www.techdirt.com/articles/20110812/15152815496/e-zachary-knights-favorite-techdirt-posts-wee k.shtml#c1006

    Maybe it's just you?

     

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  69.  
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    G Thompson (profile), Oct 16th, 2012 @ 7:10pm

    Re: Re: Re:

    Bullshit

    Yep... Atkray forgot the word 'bullshit' in front of Artists

     

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  70.  
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    MrWilson, Oct 16th, 2012 @ 7:17pm

    Re: Re: Re: Re:

    Hide your children! Hide your artists! Hide your copyrighted content! It's...anti-copyright hysteria!

    7 out of 6 IP maximalists (using IP maximalist math of course) agree, anti-copyright hysteria is bad for the health of your economy*!

    *With the caveat that you pretend that copyright violators burn the millions of dollars they didn't have in their bank accounts and wouldn't have spent on the copyrighted material they downloaded and if your definition of "the economy" is limited to include only the incomes of artless law-purchasing corporate middlemen.

     

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  71.  
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    G Thompson (profile), Oct 16th, 2012 @ 7:21pm

    Re: Re: Re: Re:

    Subjective laws though still need a reasonableness part to them, otherwise any mental incapax person could state anything whatsoever and the court would have to take them at their word no matter their state of mind.


    Also the subjectiveness has to be based on contextual information that the person should of known at the time. Just placing anyone (untrained layperson if you will) in the position of being the arbitrator of whether something might be fair usage or not does not allow subjectiveness to be a defence since the person has NO knowledge of what is or isn't when making an INFORMED Subjective decision.

    For UMG to have an employee review it twice and then state what anyone with any quasi-legal background in IP would credit as having a very strong fair usage defence means that either the employee (and by association UMG) are either conflating or incompetent or both.

     

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  72.  
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    Anonymous Coward, Oct 16th, 2012 @ 7:32pm

    "My guess is that the court won't punish UMG"

    Of course they won't. If they punished UMG, they would have to pretty much ignore DMCA, and change the basic interpretation of fair use.

    Fair use isn't an absolute. It's a relative thing. It's not black letter law, it's a series of tests, where your "score" may or may not make something fair use. It's also fairly subjective, which means the rights owner has no way to know if something is or is not fair use just by looking. They can guess, but they cannot be certain.

    Under DMCA, Universal is completely in their right to send a notice on this. YouTube should have notified their user, and allowed them to answer "it's fair use". At that point, Youtube can leave the video up, and Universal can take legal action if they see fit. Notice, counternotice, exactly as it states in the law.

    Instead, YouTube takes stuff down. That is their failing.

    Let's try to assign the blame where it really should be. This is just like the "Pearson takes down 1.5 million blogs" post the other day. The real culprit here isn't the rights holder, the real culprit is the service provider who chooses to disable things rather than allow the notice - counter notice process to occur as it is in the law.

    Any judge ruling against Universal would pretty much be setting themselves up to be overturned on appeal, and potentially dressed down by the superior court on the issue.

     

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    Greevar (profile), Oct 16th, 2012 @ 7:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    That's all completely false. You're making up a false analysis to support your preferred theory. Copyright doesn't provide incentive to create, the desire to create does that. Nobody creates content purely out of a desire for money. People create content because they like creating content. Just look at YouTube if you don't believe me. People have, do, and will continue to create art regardless of the monetary incentives in place. We smeared mud on cave walls before there was money to encourage it; art will happen long after money ceases to exist. Why? It's because art is speech and one thing people like to do is have their say on just about everything. That's why there are so many "Gangnam Style" parodies.

    Copyright is an attempt to externalize risk at the expense of the public. It is a cost to the people for the perceived benefit of creating more new works. However, art is happening at exponentially increasing rate since the internet came into vogue. It's becoming clearer every day that art no longer needs these laws to "promote the progress" because they are actually hindering it instead. In the past, the means required for the creation and distribution of art was out of reach for the common person, but now anybody with an internet connection can make a name for themselves on the wonderfully democratic global network. The amateurs are rapidly catching up to the so-called professionals.

    Now, more than ever, works are measured on their artistic merit rather than the marketing power being leveraged to shove shitty homogeneous content into our faces. Art lives and dies on our choice to "up vote" or "down vote" content we experience. We also get to choose how we experience that content, regardless of how the old guard wishes us to experience it. The content is ours, we just allowed artists to provide us the service of transforming it into something different.

     

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    average_joe (profile), Oct 16th, 2012 @ 7:39pm

    Re: Re: Re: Re: Re:

    Subjective laws though still need a reasonableness part to them, otherwise any mental incapax person could state anything whatsoever and the court would have to take them at their word no matter their state of mind.

    You're trying to inject an objective standard into a purely subjective test. The court in the Lenz case adopted the test from the Ninth Circuit Rossi case:
    The overall structure of § 512 also supports the conclusion that § 512(c)(3)(A)(v) imposes a subjective good faith requirement upon copyright owners. See Wilderness Soc'y v. United States Fish and Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc), amended by 360 F.3d 1374 (9th Cir.2004) (“[I]t is also a fundamental canon[of statutory construction] that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”) (citation and internal quotation marks omitted). In § 512(f), Congress included an expressly limited cause of action for improper infringement notifications, imposing liability only if the copyright owner's notification is a knowing misrepresentation. A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. See § 512(f). Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner. Id.
    Rossi v. Motion Picture Ass'n of Am. Inc., 391 F.3d 1000, 1004-05 (9th Cir. 2004) (emphasis added).

    There has to be actual, on purpose misrepresentation. As I said above, given the elusive nature of fair use, and the fact that the person making this decision didn't (and couldn't) have all the facts, I don't think Lenz has a chance at winning on the misrepresentation claim.

     

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    average_joe (profile), Oct 16th, 2012 @ 7:45pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    If you want to prove the copyright system wrong, then compete with it fairly. Let's see the "free" movement create books, movies, music, etc. that everyone wants so bad that they're willing to turn their noses at the copyrighted stuff. That hasn't happened. Maybe one day it will, but the fact will always remain that whatever system is in place will need to provide a system for paying everyone who makes content--which includes lots of people behind the scenes.

     

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    Greevar (profile), Oct 16th, 2012 @ 7:53pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    No, that's bullshit. You're forming a false dichotomy. It isn't necessary for people forsake one source of content for another. There's room for all of it, but the commercial outlets will have to take into consideration that they are not in control of the market anymore and they will have to honestly compete in spite of copyright. They don't own the sandbox anymore, others have a sandbox of their own and they don't need that old one anymore. If you want people to play in your sandbox, pay you for it, you better be nice or they will just go play elsewhere.

     

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  77.  
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    Greevar (profile), Oct 16th, 2012 @ 7:55pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    They don't have the only sandbox anymore.*

     

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  78.  
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    Anonymous Coward, Oct 16th, 2012 @ 8:01pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    So you begrudgingly admit that it is probably fair use. And then you turn around and say it's not an impingement on her freedom to have her video taken down. So, which is it aj? If it's fair use, they had no right to take her video down due to copyright infringement and doing so did impinge on her freedom of speech to post the video.

    The sound quality of the video is pretty bad. There's so much background noise that it's tough to even hear the song at all. I was barely able to make out only a few words to be able to tell what song it was. There's no way that a human being making an honest fair use assessment would come to the conclusion that the intent of this video was infringement. In my opinion, that's a bad faith takedown.

    You guys really got behind a silly case, and you're trying to blow it up into something it's not.

    There's nothing silly about this case. This is just one case in a long line of cases of copyright industries abusing their monopoly power at the expense of the public trust.

    This is one of the easy ones aj. They should have gotten this one right and left well enough alone. But, time and again, we're witness to their overreach. The copyright industry has shown repeatedly that it cannot be trusted. They have long since lost the respect of the public. I don't think they'll ever get it back. Not from me at any rate.

     

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  79.  
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    Anonymous Coward, Oct 16th, 2012 @ 8:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Then stop sending all the neighborhood cats over to shit in the other side's sandbox. Let them work as they work, stop pirating their stuff, stop robbing them, stop complaining when they enforce their rights, and put your energy towards your own sandbox.

    If the only way your sandbox looks better is first to nuke the existing one, then you already failed.

     

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  80.  
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    btr1701, Oct 16th, 2012 @ 10:32pm

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    > Congress exercising one of its enumerated
    > powers doesn't mean that someone's had
    > their freedom taken away from them.

    Doesn't mean it they haven't, either. It's situation specific, genius. There are countless examples of exercises of congressional power which resulted in the loss of freedom. Ever hear of the Japanese internment? Just one of the more blatant examples.

    It's hard to believe you've ever even seen a law school, let alone attended one when you make idiotic comments like "Congress exercising its enumerated powers isn't a loss of freedom for anyone".

    > It doesn't take away anyone's
    > freedom--it promotes it.

    It promotes the author's freedom at the expense of everyone else's. Or have you missed the scores of examples detailed on this site and elsewhere of perfectly legitimate speech which has been squelched using copyright?

    Let me guess... you gotta break some eggs to make an omelette, right?

     

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  81.  
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    Greevar (profile), Oct 16th, 2012 @ 10:33pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    That's unbelievably stupid. Nobody's shitting in your box, you're shitting in it yourself and expecting people to come play in it.

    Nobody's hindering them from doing what they do. Nobody's robbing them of anything. People are complaining because when they enforce their rights, they shit in our sandboxes in the process (and it isn't cat shit neither).

    You make a habit of using the most underhanded and dishonest arguments I have ever heard. Independent content stands on its own merits or not at all. The copyright industry does well enough on its own shooting themselves in the foot, they don't need our help.

    And stop accusing people of stealing. You aren't deprived of anything you already had beforehand. You still have your content. You've not suffered any loss. Your outrage comes from ignorance and an unwillingness to change. You're not entitled to a particular business model. You take a huge risk when you publish and if it fails to meet your sales expectations, it's YOUR FAULT. Society owes you nothing. Your lack of foresight put you in this situation. Stop blaming humans for doing what is natural.

     

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    btr1701, Oct 16th, 2012 @ 10:36pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    > The anti-copyright zealots are
    > missing the forest for the trees.
    > Just think of all the great
    > copyrighted works that are out
    > there.

    Funny how the works that are considered the greatest of all human artistic endeavors-- the Mona Lisa, Mozart's symphonies, Shakespeare's plays, etc.-- all were created in the complete absence of copyright.

     

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    G Thompson (profile), Oct 16th, 2012 @ 11:31pm

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

    In other words there needs to be shown intent (onus on Lenz in this situation) on the part of UMG to submit the DCMA with full knowledge that it was not infringing.

    Hmmmm..

    It's not really subjective then since it still comes under a mens rae of objectivity. It's like the subjectiveness of fear. One persons fear is not like anothers, though there still needs to be an [objective] reasonableness test. Which I think that test is here as "unknowing mistake". The problem is to prove what should be known and what is not known. ACK! Though as we all know showing someones known state of mind in a civil matter is an exercise in madness.

    Thanks for the citation too.

    Though reading that it seems even more now that the "on penalty of perjury" claim on DMCA's is just for show to keep the courts happy and maybe as a psychological hug for the recipient *eyeroll*

     

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    Scott, Oct 16th, 2012 @ 11:34pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    You're so right about that,The MAFFIA forgets that if without consumers they wouldn't be rich,they should give the costumers what they want good products at reasonable price for consumers and reasonable compensation for the artists,producers etc.

     

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  85.  
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    Karl (profile), Oct 17th, 2012 @ 12:22am

    Re: Re:

    The court makes clear that the test is subjective bad faith.

    That's not quite true, or at least, it's not the full story:
    [I]n order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

    Failing to take fair use into consideration is enough to show that the copyright owner "acted in bad faith." That consideration is certainly subjective; and as long as that subjective belief is that it is not fair use, they should not be liable under 512(f).

    But they must at least make that determination. For example, a "subjective belief" that the material is not authorized by the copyright holder is not sufficient.

    Considering the fact that UMG has shown that they had a human consider the fair use argument--twice--before taking down the material, I don't see how they could possibly be found to be in subjective bad faith. So it's not just a "big hurdle to jump," the claim against UMG is just not supported by the facts.

    I don't believe that's what happened.

    Sean Johnson, the human who viewed the content (twice), did not explicitly consider fair use. He merely followed a set of "rules" for taking down the content (like checking off boxes in a form). UMG is arguing that merely following the rules means that fair use was considered.

    I excpect the issue will be whether UMG's rules were drafted with a consideration of fair use in mind. It is here where UMG might be in trouble. UMG clearly did not consider fair use when deterimining whether a use is authorized by law (rather than UMG or Prince himself) - according to their own deposition, the only thing they considered was compulsory licensing. The rules that Johnson followed appear to have been set up only to determine if the use would be subject to synchronization royalties. That's just a guess, because the text from the Johnson declaration (as well as those of Allen, Klaus, and Moffat) has been redacted.

    But at the end of the day, I doubt Lenz will win. Even though fair use was not explicitly considered, the determination of whether a video is subject to synch licensing could incidentally be enough for a fair use determination. I expect that the judge will rule that it was.

     

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  86.  
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    Karl (profile), Oct 17th, 2012 @ 12:40am

    Re: Hyperbolic Mike!

    Just like to point out that, despite the idiotic subject line, there's no way this comment should have been flagged.

     

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  87.  
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    That One Guy (profile), Oct 17th, 2012 @ 12:57am

    Re: Re:

    Assuming I've got the facts straight, the big problem is how toothless the whole thing is, and how insanely easy it is to avoid any penalty.

    All that's required is for someone to either be able to honestly say, or be able to lie without cracking a smile, that they thought it was a violation at the time.

    That's it, and as long as they can pass that simple test, they're off the hook for any actions they take, and any collateral damage that occurs.

     

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  88.  
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    Karl (profile), Oct 17th, 2012 @ 1:04am

    Re: Re: Re: Hyperbolic Mike!

    Yeah, those stupid First Amendment lawyers got their greedy hands on it and stretched it way out past where it's supposed to be. Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!

    Joe, you really need to stop conflating the statutory rights granted in copyright with the inalienable rights enumerated in the Bill of Rights. They are not the same at all.

    For example, it's not possible to "expand" the First Amendment. The First Amendment prevents the government from making any law that abridges on the exercise of free speech. It can't be "expanded," because it's never "granted" in the first place.

     

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  89.  
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    Anonymous Coward, Oct 17th, 2012 @ 2:40am

    Re: Re: Re:

    "But they must at least make that determination. For example, a "subjective belief" that the material is not authorized by the copyright holder is not sufficient."

    Sure it is. Stop trying to change the law. If they believe that the material is not permit use through fair use, then they have a subjective belief that it's not permitted by law. Since fair use is a subjective rather than black letter law situation, they can never have anything more than a subjective belief. As Mike has pointed out here before, there are cases where almost an entire article is quoted, and that is considered fair use. In other cases, a quote of a very few lines might not be. It's almost entirely subjective, and a case that can be argued in both directions without malice.

    As such, the bar cannot be set beyond "subjective belief", because after that comes "absolute certainty" and the fair use tests just don't allow for that.

    Further, consider this: While the video may be fair use in abstract, it's use on a commercial site may impact that fair use. I don't say that it did, but it might have. There are many prongs to the fair use tests, many exceptions, and many things that are often best left for a court of law to decide. It's a grey legal area, not one of solid black and white, and as such, you cannot make the standard for the rights holder to be any higher than what they believe.

     

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  90.  
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    Anonymous Coward, Oct 17th, 2012 @ 3:33am

    Re: Re: Re: Re: Hyperbolic Mike!

    The First Amendment prevents the government from making any law that abridges on the exercise of free speech.

    The First Amendment may be a prohibition upon the Congress, but it did not prevent the Congress from enacting the Sedition Act (1798). Nor did it prevent the Adams administration from prosecuting 25 persons under that act. Neither did the First Amendment prevent the courts from duly convicting several of those said persons under the provisions of that aforesaid act.


    An Act in addition to the act, entitled "An act for the punishment of certain crimes against the United States."
     . . .
    SEC. 2. And be it further enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government . . . .

     

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  91.  
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    Ninja (profile), Oct 17th, 2012 @ 3:35am

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

    Which is the very reason it is broken. Thanks for playing.

     

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  92.  
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    Ninja (profile), Oct 17th, 2012 @ 3:44am

    Holy turmoiled discussion, Batman!

    Can we agree that the current system is broken in the sense that they allow takedown without chance for the other side to appeal?

    Also, can we agree that we need a review of the DMCA to clarify and expand fair use definitions?

     

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  93.  
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    Karl (profile), Oct 17th, 2012 @ 4:51am

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    The First Amendment may be a prohibition upon the Congress, but it did not prevent the Congress from enacting the Sedition Act (1798).

    Well, "supposed to prevent" then. The government acted unconstitutionally in that situation. It probably wasn't the first time, and it certainly won't be the last.

    But let's say that the Supreme Court had a chance to declare the Sedition Act unconstitutional. They wouldn't have "expanded" the First Amendment.

     

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    average_joe (profile), Oct 17th, 2012 @ 4:52am

    Re: Re: Re: Re: Hyperbolic Mike!

    Joe, you really need to stop conflating the statutory rights granted in copyright with the inalienable rights enumerated in the Bill of Rights. They are not the same at all.

    For example, it's not possible to "expand" the First Amendment. The First Amendment prevents the government from making any law that abridges on the exercise of free speech. It can't be "expanded," because it's never "granted" in the first place.


    I disagree. The First Amendment has been greatly expanded. For example, the First Amendment limits what "Congress" can do. It's been interpreted to include far more than just Congress. It includes the states, the judiciary, and the executive. "Congress" is a synedoche, representing more than it's literal meaning. Same thing with "speech." The First Amendment covers way more than just speech--it covers art, music, and more. "Speech" is just a synedoche too. Today, "speech" even means conduct. So I completely disagree with you. The meaning of the First Amendment has been expanded to a far, far greater number of things that it did not apply to when written. This is common knowledge, and I'm surprised that you're arguing that the meaning of the First Amendment has never changed. That's absolutely untrue.

     

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    average_joe (profile), Oct 17th, 2012 @ 4:57am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    So you begrudgingly admit that it is probably fair use.

    Nothing begrudging about it. I think it's probably fair use. Period.

    So, which is it aj?

    It didn't violate her free speech rights because it's a private website. If I complain to YouTube about a video posted there, and YouTube decides to take it down, no one's First Amendment rights have been violated.

     

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    Karl (profile), Oct 17th, 2012 @ 5:00am

    Re: Re: Re: Re:

    If they believe that the material is not permit use through fair use, then they have a subjective belief that it's not permitted by law.

    You missed the point. The subjective belief (or even the actual knowledge) that the use is not authorized by the copyright holder is not at all the same as believing that it is not authorized under fair use.

    If they only pay attention to whether it is authorized by the copyright holder, and don't even attempt to determine that it is a fair use, then they have acted in bad faith.

    You are right in that a fair use determination (absent a judge's ruling) is highly subjective, and a good-faith belief that it is not fair use is sufficient. But you must, at least, have this good-faith belief prior to issuing a takedown notice.

    Lenz is arguing that they did not. That's going to be hard to prove (if not impossible), which is why I doubt she's going to win.

     

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    average_joe (profile), Oct 17th, 2012 @ 5:12am

    Re: Re: Re:

    So did you really run off and read up on the case just so you could say something intelligent about it? LOL! That's good. Mike should follow your lead.

     

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    Karl (profile), Oct 17th, 2012 @ 5:26am

    Re: Re: Re: Re: Re: Hyperbolic Mike!

    For example, the First Amendment limits what "Congress" can do. It's been interpreted to include far more than just Congress.

    That's not so much a reflection on the First Amendment, so much as it is a reflection of the growing reach of the federal government.

    The First Amendment covers way more than just speech.

    This is because there are more avenues of speech nowadays. It also reflects the unsurprising fact that, over the past 200 years, at some point or another the government has attempted to control more forms of speech than it had previously.

    But, no, the right to free speech hasn't "expanded." There is perhaps a greater recognition that the government doesn't have a right to infringe upon it. The meaning of the First Amendment hasn't changed at all; just the implementation of it.

    By claiming free speech has "expanded," you imply that it is the government's right to grant free speech to people. It is not. The government does not have that right. It is innate, or inalienable, and exists outside any kind of government grant.

    This is, like, Free Speech 101 here. It's also Copyright 101 that copyright is not this kind of right. Copyright is not inalienable; it exists solely because the government grants it. Free speech is not this kind of right at all. It never was. Placing the two in equity is simply wrong.

     

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    Karl (profile), Oct 17th, 2012 @ 5:32am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    If I complain to YouTube about a video posted there, and YouTube decides to take it down, no one's First Amendment rights have been violated.

    True. But if you complain to YouTube about a video posted there, and the law requires that they take it down, then it certainly is a First Amendment issue. The issue would be with the law, not YouTube themselves.

     

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    Karl (profile), Oct 17th, 2012 @ 5:41am

    Re: Re: Re: Re:

    So did you really run off and read up on the case just so you could say something intelligent about it?

    I always try to read the case documents. Sometimes I can't find them online, but I always read them when I can.

    You should know this. I've been debating you for years, and I know better than to trust your opinion of case law. The moment you bring up a case, I read it. It's how I know you're so often wrong.

     

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    Anonymous Coward, Oct 17th, 2012 @ 5:45am

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    But let's say that the Supreme Court had a chance to declare the Sedition Act unconstitutional. They wouldn't have "expanded" the First Amendment.

    Chief Justice Oliver Ellsworth resigned on September 30, 1800.

    John Marshall officially took office as Chief Justice on February 4, 1801.

    Out of the Associate Justices, there would have been two Adams appointees: Bushrod Washington and Alfred Moore. And then, of course, among President Washington's appointees, the still-sitting Samuel Chase. If you remember, two of the charges in the impeachment of Justice Chase related to his conduct in the sedition trial of James Callender.

    So you are probably quite right: The Supreme Court wouldn't have "expanded" the First Amendment.

    Yet still, remember the Federalist's argument for the constitutionality of the act.

     

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    average_joe (profile), Oct 17th, 2012 @ 5:48am

    Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    That's not so much a reflection on the First Amendment, so much as it is a reflection of the growing reach of the federal government.

    Sure it is. The Amendment says that ONLY "Congress" can make no law. The word "Congress" has been interpreted more and more broadly. It wasn't until 1925 (IIRC) that the Supreme Court decided that the First Amendment bound states as well as the federal government. So for about a century and a half, the Amendment only applied to the federal government. But then for the past 8 or so decades, it applies to state governments as well. That's a huge broadening of meaning.

    This is because there are more avenues of speech nowadays.

    Music existed when the Amendment was drafted, but it was not included in "speech." Years later, the definition of "speech" was expanded to include music.

    The meaning of the First Amendment hasn't changed at all; just the implementation of it.

    If one day the Amendment regulates only "Congress" and only "speech," but then the next it regulates state governments and music, then the meaning has been expanded. You're making zero sense with this argument.

     

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    average_joe (profile), Oct 17th, 2012 @ 5:49am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    True. But if you complain to YouTube about a video posted there, and the law requires that they take it down, then it certainly is a First Amendment issue. The issue would be with the law, not YouTube themselves.

    The law does not require YouTube to take it down, just as it doesn't require them to put it back up when given a counternotice. YouTube can allow whatever material it wants on its service.

     

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    average_joe (profile), Oct 17th, 2012 @ 5:50am

    Re: Re: Re: Re: Re:

    You should know this. I've been debating you for years, and I know better than to trust your opinion of case law. The moment you bring up a case, I read it. It's how I know you're so often wrong.

    I know you will never agree, but maybe, just maybe, because I have a formal education in law and you do not, I might understand the material better than you. For example, your claim that the meaning of the First Amendment has never changed is just laughable on its face. I challenge you to find anyone who agrees.

     

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    Greevar (profile), Oct 17th, 2012 @ 7:14am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    The First Amendment doesn't give way to copyright, copyright abridges the First Amendment. It actually violates it, but human rights mean little when weighed against the profits of business.

     

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  106.  
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    Greevar (profile), Oct 17th, 2012 @ 7:30am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Are you shitting me? You're actually making that argument? The industry throws gigantic shit fits that their content is showing up on YouTube and demands they take it down in accordance with the law, and if they don't, they're opened up to third party liability. But when an individual's rights get pissed on, it's entirely YouTube's choice and they have no legal responsibility. But you're saying YouTube isn't legally obligated either way? What utter horseshit! You make the shittiest arguments this side of ootb.

     

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  107.  
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    Greevar (profile), Oct 17th, 2012 @ 7:37am

    Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Speech was not redefined to include music, it was merely an admission to the fact that music is speech.

     

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    average_joe (profile), Oct 17th, 2012 @ 7:42am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    The First Amendment doesn't give way to copyright, copyright abridges the First Amendment. It actually violates it, but human rights mean little when weighed against the profits of business.

    That makes no sense. If copyright abridged the First Amendment, copyright would be unconstitutional. The Supreme Court has rejected that argument, ergo, the supreme law of the land is that copyright does not abridge the First Amendment. The reasoning the Court has employed is that the internal safeguards of fair use and the idea-expression dichotomy make copyright constitutional.

     

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    average_joe (profile), Oct 17th, 2012 @ 7:44am

    Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Speech was not redefined to include music, it was merely an admission to the fact that music is speech.

    One day "speech" doesn't include music, then the next it does. That indicates that the meaning of the word "speech" changed.

     

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    Karl (profile), Oct 17th, 2012 @ 8:00am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    One day "speech" doesn't include music, then the next it does.

    Can you point me to any case where it said music was not protected speech?

    I've looked in vain, and I can't find a single time where music in general was ever considered unprotected by the First Amendment.

     

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    Karl (profile), Oct 17th, 2012 @ 8:06am

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

    I know you will never agree, but maybe, just maybe, because I have a formal education in law and you do not, I might understand the material better than you.

    But probably not better than the actual copyright lawyers that I know personally.

     

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  112.  
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    average_joe (profile), Oct 17th, 2012 @ 8:25am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Can you point me to any case where it said music was not protected speech?

    I've looked in vain, and I can't find a single time where music in general was ever considered unprotected by the First Amendment.


    Have you found even one constitutional scholar who agrees with you that the First Amendment has never been expanded? As you research that point, look up what "speech" meant when the Amendment was ratified. Therein lies your answer.

     

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    average_joe (profile), Oct 17th, 2012 @ 8:26am

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

    But probably not better than the actual copyright lawyers that I know personally.

    LOL! Nice deflection. I'll gladly go head to head with any of your copyright lawyer friends any day of the week. They surely focus on transactional issues, whereas I have the luxury of obsessing over the theory, doctrine, and jurisprudence.

     

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  114.  
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    Karl (profile), Oct 17th, 2012 @ 10:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Have you found even one constitutional scholar who agrees with you that the First Amendment has never been expanded?

    I have never found even one constitutional scholar who believes that the First Amendment created free speech rights. They all believe that the First Amendment was sanctioning an existing right.

    In other words, free speech is not a statutory right, unlike copyright.

    That's the main point I was making.

    Also, I notice that you haven't mentioned even one case that ever claimed music was not protected speech. Perhaps that's because it was always protected speech. The law may have only recently sanctioned that protection, but it was always protected.

     

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    Not an Electronic Rodent (profile), Oct 17th, 2012 @ 10:39am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    waaay too late.

     

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    average_joe (profile), Oct 17th, 2012 @ 12:17pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    I have never found even one constitutional scholar who believes that the First Amendment created free speech rights. They all believe that the First Amendment was sanctioning an existing right.

    In other words, free speech is not a statutory right, unlike copyright.


    I can tell you that in law school we never use the term "inalienable right" unless we're talking about historical views. That's just an older way of looking at things. That said, I really don't understand your point. To use the parlance I'm more familiar with, free speech is a constitutional right and copyright is a statutory/common law right. But at the end of the day, both are rights.

    Constitutional rights are typically phrased as a negative right: http://en.wikipedia.org/wiki/Negative_and_positive_rights Meaning, it's negative because it tells someone what they can't do, e.g., "Congress shall make no law . . . abridging the freedom of speech." But we don't usually talk about rights in the negative. We usually think of it as a "right to free speech," not as a "right to be free from laws that abridge speech."

    Again though, I don't understand your point. So what if one is a constitutional right, guaranteed by the Constitution, and the other is a statutory right, guaranteed by statute? What's your point?

    Also, I notice that you haven't mentioned even one case that ever claimed music was not protected speech. Perhaps that's because it was always protected speech. The law may have only recently sanctioned that protection, but it was always protected.

    I don't believe such a case exists. Nor do I believe any case exists that says bananas are not protected speech. That doesn't mean that they are. The point is that "speech" had a much narrower meaning when the Amendment was ratified than it does today as the meaning of the Amendment has been expanded.

    Can you cite anything, anywhere that says music was considered speech when the Amendment was ratified? Have you actually researched what the word "speech" meant when ratified? Don't just say "it was always protected speech" if you have nothing to back that up but your made-up opinion. Back it up!

     

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    Karl (profile), Oct 17th, 2012 @ 1:51pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    I really don't understand your point. To use the parlance I'm more familiar with, free speech is a constitutional right and copyright is a statutory/common law right. But at the end of the day, both are rights.

    Copyright is not a "common law" right, at least according to Wheaton v. Peters. Copyright is purely a statutory right. Perhaps you're not talking about the concept of common law copyright?

    Constitutional rights are typically phrased as a negative right

    They are not simply "negative rights," but limitations on the government, put in place to prevent abuse of power.

    So what if one is a constitutional right, guaranteed by the Constitution, and the other is a statutory right, guaranteed by statute?

    The term "constitutional right" is a bit misleading, IMO. The right to free speech is not created by the Constitution. It is not granted by the First Amendment. It is not guaranteed by acts of Congress. It is a fundamental human right, and liberty cannot exist without it.

    Copyright is not. Copyright is created by acts of Congress. It does not exist outside of the copyright statutes. There is no "underlying" right that copyright "guarantees." This is precisely what Wheaton v. Peters decided. And, frankly, you know it.

    I don't believe such a case exists. Nor do I believe any case exists that says bananas are not protected speech. That doesn't mean that they are.

    It doesn't matter if the government believes bananas are protected speech. Anything expressive is free speech, even if you do it with a banana. If there was never a single court case involving expression with bananas, then expression with bananas would still be free speech, protected from government actions by the First Amendment.

    Can you cite anything, anywhere that says music was considered speech when the Amendment was ratified?

    A form of expression doesn't have to be explicitly recognized to be protected. The founders recognized that the First Amendment existed to protect free thought, and the government didn't have the right to prevent communications of thoughts.

    The entire point of the Bill of Rights was to protect the public from abuses by the government. If you're saying that music was not protected by the First Amendment, you are saying that the government had the right to control or censor it. Are you seriously arguing that the Founders believed this would be acceptable? Not only do I find this hard to believe, I've actually never heard anyone seriously consider it at all.

     

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    btr1701 (profile), Oct 17th, 2012 @ 11:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    > It didn't violate
    > her free speech
    > rights because
    > it's a private
    > website

    It was a government mechanism (DMCA notice/takedown) that forced the website to remove the content.

     

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    average_joe (profile), Oct 18th, 2012 @ 6:21am

    It was a government mechanism (DMCA notice/takedown) that forced the website to remove the content.

    No one is forced to respond to a DMCA takedown notice. Responding merely permits the service provider to enter the safe harbor. They can choose not to.

     

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    average_joe (profile), Oct 18th, 2012 @ 6:30am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Copyright is not a "common law" right, at least according to Wheaton v. Peters. Copyright is purely a statutory right. Perhaps you're not talking about the concept of common law copyright?

    You're thinking federal. There's still state common law copyright protection.

    They are not simply "negative rights," but limitations on the government, put in place to prevent abuse of power.

    Are you disagreeing with me just for the sake of disagreement? Feels like it. As I said, constitutional rights are usually stated as negatives. You have, and cannot, refute that point because it's true.

    The term "constitutional right" is a bit misleading, IMO. The right to free speech is not created by the Constitution. It is not granted by the First Amendment. It is not guaranteed by acts of Congress. It is a fundamental human right, and liberty cannot exist without it.

    But First Amendment rights are limited and non-absolute. They aren't some magical thing that exists above the law. In the US, the First Amendment guarantees free speech rights. In the end, people have the right to free speech. If they went to court to enforce that right, they would point to the First Amendment as being the source of that right.

    Copyright is not. Copyright is created by acts of Congress. It does not exist outside of the copyright statutes. There is no "underlying" right that copyright "guarantees." This is precisely what Wheaton v. Peters decided. And, frankly, you know it.

    And yet some states have common law copyright. In the end, people have copyright rights. If they went to court to enforce those rights, they would point to the copyright statutes or state common law.

    A right is a right. There's nothing magical about certain types of rights. You go to court to enforce the right, and it gets enforced, no matter the source of the right.

    It doesn't matter if the government believes bananas are protected speech. Anything expressive is free speech, even if you do it with a banana. If there was never a single court case involving expression with bananas, then expression with bananas would still be free speech, protected from government actions by the First Amendment.

    You still are missing the point that "speech" today means way, way, way more than it did when the First Amendment was ratified. Research for yourself what the word meant back then and you'll see what I mean. There's lots of information out there. You'll also find that there's academic disagreement over exactly what it meant. But all agree that "speech" had a much narrower meaning back then.

     

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    average_joe (profile), Oct 18th, 2012 @ 6:33am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    And again, Karl, I'm still not understanding your point about the source of the right. The way it works in practice is this: Either you have the right or you don't. It doesn't matter whether you have the right because of the Constitution, or a statute, or a contract, or an administrative determination, or whatever. Do you have the right? If so, it can be enforced.

    If you can explain to me how the source of the right matters (as opposed to the fact of having the right), I'd love to hear it. I think you're just confused about this, though.

     

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    Ninja (profile), Oct 18th, 2012 @ 9:35am

    Re:

    Moron. Keep focusing on what's not an issue, seems to be you specialty. A service provide cannot take that risk, we've seen this over and over around the globe. The main issue here is that there is no adversarial process in which the dmca notice can be contested and shot down before the content is taken down and since the process seems to be automated there's no way to actually keep it on, at least not in a company that bends over to the copyright retardation.

    You are despicable as a human being when you suggest that some idiocy like copyright should have more importance or be broader than free speech. Keep acting like a rotten bastard, people like you only increase the amount and the intensity of how ppl despise the monstrosity copyright has become. And it'll reach a critical mass when these laws will be simply rendered useless by societal disrespect.

     

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    average_joe (profile), Oct 18th, 2012 @ 9:45am

    Re: Re:

    LMAO!

     

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    Karl (profile), Oct 18th, 2012 @ 11:02am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    You're thinking federal. There's still state common law copyright protection.

    Then you mean "common law" in a different sense than Wheaton. That's fine.

    Are you disagreeing with me just for the sake of disagreement? Feels like it. As I said, constitutional rights are usually stated as negatives. You have, and cannot, refute that point because it's true.

    My point was that not all "negative rights" are the same. For example, the monopoly enjoyed by the Dutch East India company was also a "negative right." But comparing free speech with the Company's monopoly would be wrong-headed in the extreme.

    But First Amendment rights are limited and non-absolute. They aren't some magical thing that exists above the law.

    Yes, they are. The right of free speech does not depend on the First Amendment for its existence. Everyone has it merely by virtue of being human. It would exist even without a First Amendment to protect it from government interference. If the government interferes with this right, it is unjustly infringing on a universal human right. That's why the First Amendment was created.

    Think of this. Suppose there was no First Amendment. On the other hand, there also were no laws whatsoever against any kind of speech. Would you have the right to free speech? Yes. The only thing the First Amendment does is make sure the government doesn't interfere with this right.

    And yet some states have common law copyright.

    Well, not so much anymore. But if a state does enact a copyright law, it is not sanctioning an existing right. The state copyright (if it exists) is created by state laws, and the state may impose any restrictions it wants on those laws, without infringing on anyone's rights.

    You go to court to enforce the right, and it gets enforced, no matter the source of the right.

    That's how it works in court. But when you say stuff like "Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!" you are not talking about what happens in court.

    The reason it's noble to cheer on the "expansion" of the First Amendment, but not the expansion of IP, is that they are fundamentally not the same kind of right. There are different categories of rights, and one is not equal to another. For example, the right to due process is not equivalent to the right to take a right turn at a red light. It's entirely appropriate that someone care about the former more than the latter.

    You still are missing the point that "speech" today means way, way, way more than it did when the First Amendment was ratified.

    I've done some research. Mostly I've found that free speech rights have contracted since the Bill of Rights was written (for instance, by Oliver Wendell Holmes' outright rejection of Madison's and Jefferson's view of free speech as a natural right). Also, a lot of things about federalism vs. anti-federalism that don't apply to this conversation.

    The rationalization for the First Amendment is just the same then as it is now: that it is a fundamental (or "inalienable" or "self-evident") right, held simply by virtue of being a free human, that must be protected from government intrusion or control.

     

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  125.  
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    average_joe (profile), Oct 18th, 2012 @ 11:40am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Then you mean "common law" in a different sense than Wheaton. That's fine.

    Try this: http://en.wikipedia.org/wiki/Common_law_copyright#Other_uses

    My point was that not all "negative rights" are the same. For example, the monopoly enjoyed by the Dutch East India company was also a "negative right." But comparing free speech with the Company's monopoly would be wrong-headed in the extreme.

    I said that constitutional rights are usually stated as negative rights, i.e., they state that a certain action cannot be taken. I have no idea what nonsense you're going on about. If some other right is also stated in the negative, and the comparison is made between that right and the First Amendment, then it's not "wrong-headed in the extreme." It's just a factual comparison. Regardless, my point remains that constitutional rights are typically stated in the negative, and nothing you've said has refuted that in any way.

    Yes, they are. The right of free speech does not depend on the First Amendment for its existence. Everyone has it merely by virtue of being human. It would exist even without a First Amendment to protect it from government interference. If the government interferes with this right, it is unjustly infringing on a universal human right. That's why the First Amendment was created.

    Think of this. Suppose there was no First Amendment. On the other hand, there also were no laws whatsoever against any kind of speech. Would you have the right to free speech? Yes. The only thing the First Amendment does is make sure the government doesn't interfere with this right.


    In the U.S., the source of our free speech rights is the First Amendment. This is so basic and fundamental and obvious, that I honestly have no idea what you're talking about. Can you cite me some authority for the point you're making?

    That's how it works in court. But when you say stuff like "Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!" you are not talking about what happens in court.

    The reason it's noble to cheer on the "expansion" of the First Amendment, but not the expansion of IP, is that they are fundamentally not the same kind of right. There are different categories of rights, and one is not equal to another. For example, the right to due process is not equivalent to the right to take a right turn at a red light. It's entirely appropriate that someone care about the former more than the latter.


    Either you (1) have a right, or (2) do not have a right. I understand that you may value some rights more than others, but in practice, either the right exist or it doesn't. Your right to have a contractual term enforced receives its day in court just the same as your due process rights.

    You still haven't explained how in practice the source of the right matters.

    I've done some research. Mostly I've found that free speech rights have contracted since the Bill of Rights was written (for instance, by Oliver Wendell Holmes' outright rejection of Madison's and Jefferson's view of free speech as a natural right). Also, a lot of things about federalism vs. anti-federalism that don't apply to this conversation.

    The rationalization for the First Amendment is just the same then as it is now: that it is a fundamental (or "inalienable" or "self-evident") right, held simply by virtue of being a free human, that must be protected from government intrusion or control.


    And yet the First Amendment is the source of the right to free speech.

    Are you still denying that the scope of the First Amendment hasn't changed? If so, can you cite to even one single authority for the notion?

     

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  126.  
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    Karl (profile), Oct 18th, 2012 @ 3:33pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    In the U.S., the source of our free speech rights is the First Amendment. This is so basic and fundamental and obvious, that I honestly have no idea what you're talking about. Can you cite me some authority for the point you're making?

    I have never, ever heard anyone, ever, say that the First Amendment is the source of our free speech rights. They are the source of the protection of those rights. People often say "First Amendment" as a colloquial shorthand for "free speech" or "free expression," but that doesn't mean the First Amendment created free speech or free expression. Can you cite me any authority whatsoever that said that free speech would not exist were it not for the First Amendment?

    In the meantime, here are my authorities:
    That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.
    - Virginia Declaration of Rights, sec. 12

    The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.
    - Thomas Jefferson to Edward Carrington, 16 Jan. 1787

    All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever.
    - Federal Farmer, no. 16, 20 Jan. 1788

    The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
    - James Madison, House Debate, 8 June 1789

    These are not the sentiments of people who believe free speech and a free press were created by the First Amendment. (Most especially since they were said before there was a First Amendment.)

    There were also several people who were opposed to creating the First Amendment. They believed it wasn't necessary, because there was already free speech, and the government wasn't attempting to shut it down:
    In answer to the gentleman from Fayette, (Mr. Smilie,) on the subject of the press, I beg leave to make an observation. It is very true, sir, that this Constitution says nothing with regard to that subject, nor was it necessary; because it will be found that there is given to the general government no power whatsoever concerning it; and no law, in pursuance of the Constitution, can possibly be enacted to destroy that liberty.
    - James Wilson, Pennsylvania Ratifying Convention, 1 Dec. 1787

    The gentleman endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war. Has any transaction taken place to make us suppose such an amendment necessary?
    - Jackson, House Debate, 8 June 1789

    Hamilton, in particular, was worried that creating a bill of rights would give the impression that what wasn't covered in the bill of rights would not be considered rights at all:
    I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

    In other words, he was speaking out against the viewpoint you are espousing right now: that "the First Amendment is the source of the right to free speech."

    You still haven't explained how in practice the source of the right matters.

    Well, for one thing, we the people can advocate for limiting statutory rights by law. We can advocate for Congress to limit (or even take away) copyright or patent statutes, and if we succeed, nobody's rights are infringed upon. On the other hand, we can't do that for free speech rights, because those rights do not arise from acts of Congress (or even from the public consensus). Just as we can't petition Congress to take away the right of black people to vote.

    Also, statutory rights are usually enacted for a specific purpose, and their success or failure depends on how well those rights serve that purpose. Inalienable rights do not need justifying; they are human rights, and if any justification is necessary, it falls upon those who wish to encroach upon them. If the statutory right to make a right turn on red is resulting in more traffic accidents, then we should take that right away; but if due process is making law enforcement too difficult, then tough shit for law enforcement.

    I'm sure you get the picture.

    And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.

     

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  127.  
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    Karl (profile), Oct 18th, 2012 @ 3:43pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    People often say "First Amendment" as a colloquial shorthand for "free speech" or "free expression,"

    By the way: reading back on my comments, I realized I also made this mistake, and it's probably the source of a great deal of confusion in this discussion.

    When I said the "First Amendment" cannot be expanded, I was not talking about the First Amendment as a legal document. I was talking about the rights protected by the First Amendment.

    The right to free speech that is protected by the First Amendment cannot "expand," because it is already all-encompassing.

     

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    average_joe (profile), Oct 18th, 2012 @ 4:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Great post, Karl. Thanks for all the cites. You're nothing if not thorough and thoughtful.

    I think I understand the confusion now. To the extent there is an implied, fundamental right to the freedom of speech, it's never been the case that anyone had to cite such an unwritten right. The reason is simple: Free speech is guaranteed by the First Amendment explicitly. It's not some unenumerated, implied right. It's a right that's spelled out in the Constitution. As such, there's never been a need to explore the extent that the right would exist if it weren't specifically enumerated. The First Amendment is just the statutory codification of the right to freedom of speech.

    So while in some sense there is the right to free speecdh in the absence of the constitutional guarantee, we don't think of it that way since the right is explicitly guaranteed in the Constitution.

    Make sense?

    I don't doubt there is some implicit right to freedom of speech. The point is that there's no need to go there since the right is mentioned by name in the Constitution. One would NEVER go to court and sight the unwritten right to freedom of speech that you're describing because there'd be no reason to.

    Not only that, the unwritten right to freedom of speech is NARROWER than the explicit right in the Constitution. No court that I'm aware of has ever recognized an implied right to freedom of speech that is BROADER than the explicit one in the Constitution. Once the Constitution gives you a right, and this is a point I'm not sure you understand, that right is coextensive at best with the unwritten one.

    For example, you can't go to court and argue successfully that the unwritten due process clause gives you rights that the actual, written due process clause gives you. In other words, the fact that there may be some unwritten right to free speech is irrelevant. It can never give you a right that you don't already have because of the ACTUAL free speech right.

    So when you talk about some unwritten free speech right, I don't see the point. You're describing some right that we might have but for the fact that we don't. It's a diversion done Irrelevant Lane.

    Well, for one thing, we the people can advocate for limiting statutory rights by law.

    And lots of people can and do advocate for constitutional change as well. I think you are misunderstanding the issue. It matters not that there is some undefined, implied, extra-constitutional right to free speech. Nobody will ever have any free speech rights in this country that are not grounded in the First Amendment.

    And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.

    You're trying to frame free speech as a human right that supersedes copyright law in the U.S. It doesn't work that way. Congress has the constitutional authority to promulgate copyright laws. Copyright laws obviously clash with the First Amendment. The Supreme Court has addressed the issue and held that as long as the substantive copyright statute does not discard idea-expression dichotomy and fair use, then that statute will get only rational basis scrutiny. That is the supreme law of the land right now. If you go to court and challenge a substantive copyright statute on a First Amendment challenge, that is the test that will be used. What is perfectly clear is that the substantive copyright laws we have right now are constitutional. That means they don't violate the First Amendment. And more importantly for our purposes, the fact that the right to freedom of speech is to some extent implied is irrelevant: the full extent of the right is explicit in the First Amendment and the balancing between that right and copyright has already been done.

    You're pointing out something that has no practical application. Do you have the right to freedom of speech? Yes. That right is encompassed, in toto, by the First Amendment.

    That said, I hope you see that whether the right is thought of as an implied, fundamental right or as an explicit right is irrelevant. Either you have the right or you don't. And if you have the right in the U.S., the way you prove that you have the right is the First Amendment.

    (Sorry, but I gotta run. No time to proofread this.)

     

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