What Public Domain? Why A Letter Written In 1755 Is Still Covered By US Copyright Law

Anyone Who Says Copyright Cannot Be Used For Censorship Has No Credibility

from the sorry-adam dept

Wed, Sep 19th 2012 8:46am — Mike Masnick

Adam Mossoff is a law professor at George Mason University. I've come across some of his previous writings in the past, and have been repeatedly impressed at just how disconnected from reality they tend to be. However, his latest piece, for the Austin American-Statesman takes the cake, entitled simply: Copyright doesn't limit online speech. Of course, this is empirically false. Anyone who is even remotely intellectually honest admits that copyright can (and has) been used to limit speech. Just ask the operators of a hip hop blog who had the site seized for over a year based on nothing other than an unsubstantiated claim by the RIAA.

Or, how about the Russian activists who were shut down after the Russian government used copyright claims to seize their computers?

So how does Mossoff get around that? Simple. If you can't argue the facts, just make up a scenario that works in your favor. He sets up a perfect strawman, insisting that those who argued against SOPA and PIPA claimed that all copyright violates the First Amendment:

The argument that copyright violates the constitutional right to free speech seems to have particular force on the Internet, because, in the words of one federal court decision, "The Internet is a communications medium." Copyright owners seem to squelch this communication: They compel websites to take down infringing videos, music and writings. The music industry successfully sued widely used peer-to-peer services such as Napster and Grokster, and it continues to use automated programs called bots to track what music people download and from what websites. SOPA expanded copyright owners' legal rights to block websites containing infringing content, in effect relegating these websites to digital purgatory. As a law professor stated at a conference over the summer: "Copyright is the engine of censorship."

But Mossoff then claims this is crazy talk, because he has bought into the view that copyright is not the monopoly privilege that it is but that it's "property." Of course, that's hogwash. The purpose of "property" is to best allocate scarce resources. "Property" does not make sense either intellectually or economically for things that are not scarce, such as content. Copyright is not a property right, no matter how many times maximalists incorrectly insist it is. However, even if we accept Mossoff's incorrect assertion, he then layers on the ridiculous by claiming that copyright has no impact on speech other than that which is covered by copyright:

Thus, copyright law secures the fruits of creative labors, but only those specific fruits — the value in the specific text, picture or song created by the artist.

The right to free speech is the right to express one's thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.

Okay. So what about all the original content created on the blogs that the government took down using copyright law? Or the speech of those Russian activists? This is where Mossoff appears to have a total blindspot, common to someone in academia with no experience in the real world. Copyright is not used just to protect the rights granted under the Copyright Act. It is used regularly to shut down other expression.

Copyright claims took down the official DNC livestream. Bogus copyright claims took down the official Hugo Awards live stream. Bogus copyright claims took down a negative review of a Universal Music album. Questionable copyright claims took down parody commentary by Dan Bull, expressing his opinion on another copyright lawsuit (while the copyright holder left up tons of other versions of the song). Copyright claims were used to suppress an unflattering photo that some rich dude didn't like. A bogus copyright claim was used to take down a totally unrelated news article, after Fox thought it was about a movie which it wasn't.

And that's all just from the past few months. Anyone who insists that copyright has nothing to do with censorship because it only protects the rights established under the Copyright Act seems to have no credibility on the subject.

Mossoff then further expands his thesis by claiming that copyright doesn't violate the First Amendment... because there are some limits on the First Amendment. Of course, that argument makes no sense either. Yes, there are some limits on the First Amendment. That doesn't mean that any restriction on speech is okay under the First Amendment. This is basic logical fallacy territory. Just because there are some exceptions, doesn't mean that all exceptions make sense or are legal -- but Mossoff honestly seems to be making that argument.

If you actually want intelligent and nuanced views on the conflict of the First Amendment and copyright law, rather than the ridiculous claims from Mossoff, I recommend Neil Netanel's Copyright's Paradox or David Lange and Jefferson Powell's No Law. Both books involve careful and detailed analyses of how and where copyright law and the First Amendment come into conflict.

Mossoff just brushes all that off, saying that since both copyright and the First Amendment are in the Constitution, there's no conflict:

In fact, both copyright and the right to free speech are based in the Constitution — in the copyright and patent clause in Article I, Section 8, and in the First Amendment.

Strangely, people are now claiming that one part of the Constitution is an unconstitutional violation of another part of the Constitution.

Of course, that's neither accurate nor "strange." First off, free speech is a right in the Constitution. Copyright is not. It troubles me that a "law professor" would make such an obviously false claim. The Constitution's Article I, Section 8 only grants Congress the right to create a copyright law -- explicitly for the purpose of "promoting the progress of science" (the "useful arts" stuff was about patents). To suggest that the Constitution establishes copyright as a right is simply false.

Second, there is nothing "strange" at all about the concerns people have raised about copyright law. Even if we assume that Mossoff's initial suggestion that both come from the Constitution is accurate, what he ignores is just how massively copyright law has changed since it was first created. In 1976, the US completely overhauled its copyright system, making it so pretty much anything new put in a "fixed" form was automatically granted copyright for life plus 50 years (later expanded to 70 years, thanks to Disney and Sonny Bono). To pretend that copyright law we have today couldn't possibly conflict with the First Amendment because we also had copyright law in 1790 is ignoring that copyright law today looks nothing like copyright law in 1790.

Mossoff, ridiculously, acts as if they're basically the same thing.

It really makes you wonder how anyone can take these claims seriously when they're so uninformed. Mossoff is apparently appearing this week at UT Austin for a discussion on free speech and intellectual property. Thankfully, one of the other people appearing at the same event is Neil Netanel, the author of Copyright's Paradox, mentioned above. Mossoff would do well to actually pay attention to what Netanel has to say.

Let's make this simple: is copyright automatically censorship? No. But can it be used for censorship? Absolutely. I don't see how anyone who is even remotely intellectually honest can deny that. Copyright maximalists are free to suggest that the censorship "costs" are minimal or can be minimized. Or they can argue that this is collateral damage that is "worth it" for the supposed benefits provided by copyright law. But to argue that copyright law is entirely unrelated to free speech violations is simply not a supportable position. Yet it's the one Mossoff makes. And for that reason, he has no credibility on the subject.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: adam mossoff, censorship, copyright, pipa, property, sopa

127 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Ninja (profile), 19 Sep 2012 @ 7:51am

@ bob, average_joe and other AC trolls:

Please read carefully what the point of the article is before commenting. I'll highlight the paragraph in which Mike summarizes it in a very comprehensible manner:

Let's make this simple: is copyright automatically censorship? No. But can it be used for censorship? Absolutely. I don't see how anyone who is even remotely intellectually honest can deny that. Copyright maximalists are free to suggest that the censorship "costs" are minimal or can be minimized. Or they can argue that this is collateral damage that is "worth it" for the supposed benefits provided by copyright law. But to argue that copyright law is entirely unrelated to free speech violations is simply not a supportable position. Yet it's the one Mossoff makes. And for that reason, he has no credibility on the subject.

Please note that Mike is not condemning copyright but the fact that the law professor is downplaying or ignoring the FACT that it has been used to censor speech. I also invite and recommend you to click the links and find the sources before commenting (which includes clicking the sources for each individual article linked here).

Hopefully we'll have a discussion over the actual point of the article here. I'll bet $10 we won't. Any takers? ;)
[ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 8:56am
  
  Re:
  Sadly, a gun, a knife, or even a good roll of duct tape can be used for censorship as well. Don't blame the tool for how it is used.
  [ link to this | view in chronology ]
  - Milton Freewater, 19 Sep 2012 @ 9:25am
    
    Re: Re:
    "Sadly, a gun, a knife, or even a good roll of duct tape can be used for censorship as well."
    
    For example?
    [ link to this | view in chronology ]
    - That One Guy (profile), 19 Sep 2012 @ 1:20pm
      
      Re: Re: Re:
      I think the 'example' in those cases would be physical threat of violence to stop someone from speaking, instead of the threat of legal violence used via copyright law. In both cases you've got a threat to stop someone from speaking, it's just the 'how' that differs.
      
      There is however a rather large difference:
      
      When used correctly and according to directions, both a knife and duct tape do not cause harm. You have to actively do things with them that they are not intended for for them to be harmful to someone.
      
      With copyright however, using it as directed will stifle free speech, by keeping someone from incorporating something someone else has said/done into what they can say. You have to make exceptions/loopholes such as 'free use' to allow it to not do so.
      [ link to this | view in chronology ]
  - John Fenderson (profile), 19 Sep 2012 @ 9:28am
    
    Re: Re:
    Cars kill people, too, but that doesn't mean they can't be made safer. The problem isn't just that they could be abused, it's that they make abuse so easy as to become inevitable. As we have seen.
    [ link to this | view in chronology ]
  - Ninja (profile), 19 Sep 2012 @ 9:44am
    
    Re: Re:
    Oh I blame the tool. Knives will be knives regardless of what you do but copyright can be built in a sane and fair framework that either prevents or minimizes its usage as a censorship tool.
    
    As wisely pointed copyright wasn't that monster in its early days.
    [ link to this | view in chronology ]
- The eejit (profile), 19 Sep 2012 @ 9:04am
  
  Re:
  But what about the artists? Their rights are being infringed by everyone, you criminal, freeloading assmugger scum!
  
  /s
  [ link to this | view in chronology ]
  - Chosen Reject (profile), 19 Sep 2012 @ 9:23am
    
    Re: Re:
    Congress infringed on everyone's rights in so that the copyright holder would be the only one able to copy and distribute. Copyright's mere existence is a limitation on everyone's rights for the benefit of one. We can argue whether that is worth it or not, but that is what it is.
    
    Yes, I saw the '/s', but I thought it needed to be said.
    [ link to this | view in chronology ]
    - Anonymous Coward, 19 Sep 2012 @ 9:19pm
      
      Re: Re: Re:
      "Congress infringed on everyone's rights in so that the copyright holder would be the only one able to copy and distribute."
      
      Bullshit. Just in the same manner that property rights give you control over land, the congress is well within their rights to grant copyright for a term they seen fit.
      
      It's not a limitation on your rights. You are free as they come to write your own songs, to make your own movies, to write your own books...
      
      Falsely backing yourself into a corner and acting trapped doesn't make it reality. It actually makes you look retarded and weak.
      [ link to this | view in chronology ]
  - Anonymous Coward, 20 Sep 2012 @ 3:22pm
    
    Re: Re:
    What about the corporations whose god given right is to oppress the artists. Why in hell should talent count more than daddy's money?
    [ link to this | view in chronology ]
The Standard Responder, 19 Sep 2012 @ 8:59am

The Standard Response
Except your 100% wrong. The copyright law is used to censor just as much as laws against murder are used to commit murder. It makes no logical sense and anyone who suggests otherwise are kowtowing to the filthy slough of Big Search.
[ link to this | view in chronology ]
- The Standard Response, 19 Sep 2012 @ 9:01am
  
  Re: The Standard Response
  And for the record, Ninja, I didn't even bother to read your full summary before flying off the handle!
  [ link to this | view in chronology ]
  - Ninja (profile), 19 Sep 2012 @ 10:04am
    
    Re: Re: The Standard Response
    Epic win!
    [ link to this | view in chronology ]
- jupiterkansas (profile), 19 Sep 2012 @ 9:12am
  
  Re: The Standard Response
  With capital punishment, laws against murder are used to commit murder.
  [ link to this | view in chronology ]
  - The Standard Responder, 19 Sep 2012 @ 9:31am
    
    Re: Re: The Standard Response
    Well played.
    [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

average_joe (profile), 19 Sep 2012 @ 9:06am

However, his latest piece, for the Austin American-Statesman takes the cake, entitled simply: Copyright doesn't limit online speech. Of course, this is empirically false. Anyone who is even remotely intellectually honest admits that copyright can (and has) been used to limit speech.

The title he came up with for the article was "Copyright Does Not Violate the Right to Free Speech." The publisher changed it. Mossoff explains it here: http://truthonthemarket.com/2012/09/17/copyright-does-not-violate-the-right-to-free-speech/

Mosso ff states:
The newspaper editor turned this into, �Copyright Doesn�t Limit Online Speech.� Sigh. Actually, copyright does limit online speech � the copyright laws prohibit digital speech that accesses or copies copyrighted speech without authorization � and the point of my op-ed is that this is not a violation of the right to free speech.
So before you go off all half-cocked, maybe take such considerations into account.

And honestly, Mike, attacking his credibility and being so incredibly hostile and degrading because you disagree just makes you look bad. Ever wonder why you're seen as an extremist? It's because of stuff like this.
[ link to this | view in chronology ]
- The Infamous Joe (profile), 19 Sep 2012 @ 9:13am
  
  Re:
  Copyright can violate the right to free speech. In fact, it does all the time. I don't see how the renaming of the article title changes the content within, nor does it have an effect on Mike's stance.
  
  Maybe I'm missing your point?
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 9:15am
  
  Re:
  I don't like copyright, so does that make me an extremist? A radical extremist? Where have I heard this before:
  
  http://www.cbc.ca/news/technology/story/2010/06/23/copyright-heritage-minister-moore.html #ixzz0rp15aklR
  
  "The only people who are opposed to this legislation are really two groups of radical extremists," Moore said at a meeting of the International Chamber of Commerce in Toronto on Tuesday. "There are those that pretend to be for copyright reform, but they don't believe in actual copyright reform. There are those that are cited as experts by the media endlessly who are not in favour of copyright reform."
  [ link to this | view in chronology ]
- weneedhelp (profile), 19 Sep 2012 @ 9:15am
  
  Re:
  WOW. Less_than_average_joe... heed your own advice.
  
  "Mike, attacking his credibility and being so incredibly hostile and degrading because you disagree just makes you look bad."
  
  Its modus operandi for the likes of the greedtards like yourself.
  [ link to this | view in chronology ]
  - Ninja (profile), 19 Sep 2012 @ 9:47am
    
    Re: Re:
    Amen. And I did try to call attention to the point of the article in the first comment. As predicted he failed to understand the point and managed to bring a non-issue into the discussion.
    [ link to this | view in chronology ]
    - weneedhelp (profile), 19 Sep 2012 @ 9:51am
      
      Re: Re: Re:
      " As predicted he failed to understand the point and managed to bring a non-issue into the discussion."
      
      At least he lived up our expectations of trolldom. There is something to be said for consistency.
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 Sep 2012 @ 11:08am
        
        Re: Re: Re: Re:
        Consistency is only worthwhile if you're not a loser.
        [ link to this | view in chronology ]
- Milton Freewater, 19 Sep 2012 @ 9:27am
  
  Re:
  "being so incredibly hostile and degrading"
  
  For example?
  [ link to this | view in chronology ]
  - Rich, 19 Sep 2012 @ 12:43pm
    
    Re: Re:
    I think he was referring to Mike's comment about the author being in academia, and thus out-of-touch with reality. I agree wholeheartedly with the bulk of what Mike wrote, but I have to admit that was a borderline ad hominem.
    [ link to this | view in chronology ]
    - JMT (profile), 19 Sep 2012 @ 1:52pm
      
      Re: Re: Re:
      What Mike said was "...Mossoff appears to have a total blindspot, common to someone in academia with no experience in the real world", which is a not ad hom, but a generalisation with a strong basis in fact. It's certainly not "hostile and degrading".
      [ link to this | view in chronology ]
- Chosen Reject (profile), 19 Sep 2012 @ 9:31am
  
  Re:
  Except his original title would be wrong, too. Have you ever read "60 Years Later: Coming Through the Rye"? No? Oh, that was because copyright is being used to stifle someone else's speech.
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 10:21am
  
  Re:
  The argument he makes is quite a cheese-bell argument. As long as you can keep the discussion limited to an obvious statement you can say whatever you want.
  The moon is made of green cheese under the assumptions that you are wearing the correct monochromatic glasses and the moon is defined as a specific product in Cheese Shop in San Diego.
  Talking about copyright versus free speech as narrowly defined in the US constitution is a free piece, without any contribution to the real debates surrounding grey area use of copyrighted material.
  
  As long as you use broad strokes like: Everything is perfectly defined legally (or the lack is irrelevant/insignificant), everyone knows exactly how copyright works (I would claim that nobody even has a sufficiently exact definition of copyright to make the claim of knowledge of law!) and copyright as defined in the constitution is a singular and universal truth of how the world should work several hundreds of years after it was written for a different society.
  Those limitations are cheaply not made clear and the result is a onesided logical tour de force of shooting down a strawman about constitution having a build in contradiction...
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 10:30am
  
  Re:
  AJ, you might want to note that his statement is, you know, still WRONG.
  [ link to this | view in chronology ]
  - average_joe (profile), 19 Sep 2012 @ 10:50am
    
    Re: Re:
    AJ, you might want to note that his statement is, you know, still WRONG.
    
    How so? Can you elaborate?
    [ link to this | view in chronology ]
    - Anonymous Coward, 19 Sep 2012 @ 11:02am
      
      Re: Re: Re:
      The title and Mossoff's quote don't change any of the points raised in this article which does a pretty through job of examining how it is wrong. I know you think you're raising a relevant point with the 'it wasn't his title' thing but it really couldn't be less relevant.
      [ link to this | view in chronology ]
      - average_joe (profile), 19 Sep 2012 @ 11:28am
        
        Re: Re: Re: Re:
        Can you point out one particular, concrete way that copyright violates someone's First Amendment rights? Not an example of where speech was limited--copyright can obviously limit speech--but an example of where First Amendment rights are in fact violated.
        [ link to this | view in chronology ]
        
        Chosen Reject (profile), 19 Sep 2012 @ 11:32am
        
        Re: Re: Re: Re: Re:
        I already did, and you seem to have ignored it. Have you read 60 Years Later: Coming Through the Rye? No, and you will not be able to in the US because copyright is limiting someone's free speech.
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 11:52am
        
        Re: Re: Re: Re: Re: Re:
        Salinger v. Colting is not an example of where someone's First Amendment rights were VIOLATED. No one denies that copyright limits free speech. The claim is that it doesn't legally violate it. Do you have an example of where copyright actually violates someone's First Amendment rights?
        [ link to this | view in chronology ]
        
        Chosen Reject (profile), 19 Sep 2012 @ 12:06pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Before we keep moving the goal posts, can you tell me what you consider a violation of free speech.
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 12:16pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        An actual violation of someone's actual First Amendment rights.
        [ link to this | view in chronology ]
        
        Chosen Reject (profile), 19 Sep 2012 @ 12:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Yes, that's what I'm asking you to define. What is it that you consider to be an actual violation of their first amendment rights? Can you give an example?
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 12:37pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        http://en.wikipedia.org/wiki/Cohen_v._California
        
        Cohen got arrested for disturbing the peace for wearing a "Fuck the Draft" jacket to court. That violated his First Amendment rights. The Supreme Court reversed his conviction.
        [ link to this | view in chronology ]
        
        That One Guy (profile), 19 Sep 2012 @ 1:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So if being punished for what you've said/are saying is a violation of your first amendment rights, how is preemptively being punished by not being allowed to speak at all, or being able to speak, just not to anyone else, not also a violation?
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 1:33pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        A First Amendment violation requires state action: http://rationalwiki.org/wiki/State_action_doctrine
        
        It's not the government taking down the YouTube videos.
        [ link to this | view in chronology ]
        
        Chosen Reject (profile), 19 Sep 2012 @ 1:35pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Infringing a copyright is (usually) a civil violation of law, with a state action as punishment. What is the real difference between the state punishing you and someone asking the state to punish you? In either case you still get punished by the state.
        [ link to this | view in chronology ]
        
        Togashi (profile), 20 Sep 2012 @ 9:43am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So it's only a problem if the government infringes my rights? Anyone else shouldn't need to respect my rights to free speech, because they're not the government? Yet you've claimed that anybody downloading a song is 100% morally wrong, because it violates the copyrights.
        
        Allow me to quote someone you may be familiar with, if I may: "Tell me this (and no one here seems willing to answer this simple question): Can I pick and choose which of your rights I want to respect? If I decide to violate one of your rights, would it be wrong?"
        [ link to this | view in chronology ]
        
        average_joe (profile), 20 Sep 2012 @ 10:12am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Filing a false, bad faith takedown notice is a wrong, but it's not a violation of someone's First Amendment rights since the government is not involved (and First Amendment violations require state action). It's still wrong, legally and morally. Sorry if that wasn't clear. Mossoff argued that no one's First Amendment rights are being violated, and that's true. That doesn't mean they aren't the victims of misrepresentations or that they aren't having their speech negatively impacted.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 20 Sep 2012 @ 1:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Filing a false, bad faith takedown notice is a wrong, but it's not a violation of someone's First Amendment rights since the government is not involved (and First Amendment violations require state action)
        
        Ok AJ, now that your comment caused me to lose an hour or so (thanks btw) dredging through some of the conflicting rulings concerning the State Action Doctrine I have a question.
        
        I noticed that in some of the rulings (unless I read them wrong - always a possibility IANAL) that the action of the court itself could be considered a "state action" in some instances. If this is true, is it possible that a court ordered injunction removing protected speech in a civil case could be considered First Amendment violation?
        [ link to this | view in chronology ]
        
        average_joe (profile), 20 Sep 2012 @ 1:37pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Good stuff! Yes, going to a court and getting the court to take action makes it state action, so the First Amendment is in play. A private takedown notice (issued under the Section 512) is not state action, but going to court and getting an injunction (issued under Section 502) is.
        
        But don't assume that just because the injunction affects protected speech there has been an actual violation of the First Amendment. The injunction is state action so there could be a violation, but there isn't necessarily one.
        
        An example would be the injunction against hyperlinking in the Corley case: http://scholar.google.com/scholar_case?q=273+F.+3d+429&hl=en&as_sdt=2,19&case=5930508913 825375010&scilh=0
        
        The defendant argued that the district court violated his First Amendment rights by enjoining him linking. The Second Circuit found that the injunction (and the DMCA for that matter) didn't violate the First Amendment.
        [ link to this | view in chronology ]
        
        Gwiz (profile), 20 Sep 2012 @ 2:15pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Yes, going to a court and getting the court to take action makes it state action, so the First Amendment is in play. A private takedown notice (issued under the Section 512) is not state action, but going to court and getting an injunction (issued under Section 502) is.
        
        Right. I figured that a DMCA notice by itself wouldn't be considered a state action.
        
        But don't assume that just because the injunction affects protected speech there has been an actual violation of the First Amendment. The injunction is state action so there could be a violation, but there isn't necessarily one.
        
        Yeah, I know. Lots of conflicting rulings on this stuff. I was just curious if it could be when it came to copyright. It would be nice if some of this made up to SCOTUS and we had some final rulings.
        
        An example would be the injunction against hyperlinking in the Corley case: http://scholar.google.com/scholar_case?q=273+F.+3d+429&hl=en&as_sdt=2,19&case=5930508913 825375010&scilh=0
        
        The defendant argued that the district court violated his First Amendment rights by enjoining him linking. The Second Circuit found that the injunction (and the DMCA for that matter) didn't violate the First Amendment.
        
        Interesting. I'll have to read up on that one.
        
        One thing I did notice about the state action rulings I read, it seemed almost as if the courts sometimes came to a conclusion first and then twisted the state action part to fit the results they wanted.
        [ link to this | view in chronology ]
        
        Chosen Reject (profile), 19 Sep 2012 @ 1:33pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        So an arrest is necessary? Or is the difference in your mind that Cohen was stopped directly by the government, whereas Colting was stopped by the government at the request of a non-government entity?
        
        I've read more on the case. I had not heard that Colting and Salinger's estate had settled. Colting is allowed to publish the book everywhere except the US. I can't help but think that Salinger's estate agreed to that arrangement because they don't believe that 60 Years Later actually violates their copyright, or that it only violates it in the US. In which case, you have US copyright law that violates the first amendment.
        
        All of that is actually getting away from the point. Your claim is that the article title changes the content of his article. His article is still wrong. He uses the example of being able to talk about Ayn Rand's book Atlas Shrugged. Copyright stops people from distributing that exact work, but not from people talking about it. That's true. But cases like that are easy. What about when someone changes the work. Fair use is supposed to be a release valve to prevent first amendment violations. Any court that rules on the fair use of a work, is also ruling on whether the first amendment is being violated. Unfortunately, there is no separation there. You don't have one court ruling on the first amendment issue with another ruling on the fair use issue, so of course, any ruling on whether a work is fair use is going to automatically have a ruling on the first amendment issue. However, even though a fair use ruling automatically makes a first amendment ruling, courts don't consider the first amendment implications. You can tell this because one of the factors for testing fair use has to do with a market. In first amendment cases, no one ever asks about the economic impact of anyone involved. Any case where a work is determined to not be fair due to using that factor (whether alone or in part) is a candidate for first amendment violations.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 19 Sep 2012 @ 1:11pm
        
        Re: Re: Re: Re: Re: Re: Re:
        What's the difference between limiting someone's right to free speech and violating it?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 Sep 2012 @ 11:51am
        
        Re: Re: Re: Re: Re:
        Copyright claims took down the official DNC livestream. Bogus copyright claims took down the official Hugo Awards live stream. Bogus copyright claims took down a negative review of a Universal Music album. Questionable copyright claims took down parody commentary by Dan Bull, expressing his opinion on another copyright lawsuit (while the copyright holder left up tons of other versions of the song). Copyright claims were used to suppress an unflattering photo that some rich dude didn't like. A bogus copyright claim was used to take down a totally unrelated news article, after Fox thought it was about a movie which it wasn't.
        
        You're sure you read this article all the way through?
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 12:03pm
        
        Re: Re: Re: Re: Re: Re:
        Which one of those examples is a violation of someone's First Amendment rights? I don't see any that are.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 19 Sep 2012 @ 1:15pm
        
        Re: Re: Re: Re: Re: Re: Re:
        How about every single one of them?
        DNC livestream - A shutdown of political speech.
        Hugo Awards - A shutdown of protected speech, given that the time it was shut down was over the showing of works by an artist who was accepting his award!
        Dan Bull - Parody is fair use under copyright law (clearly you are NOT a lawyer or you'd understand that)
        The one about the unflattering photo - The rich dude (IIRC he's some bigshot at a US football team) did not take the photo nor did he have the rights to it, therefore by making a copyright claim, he violated First Amendment free speech rights!
        Ditto goes for the news article - Fox took one look at the title and took it down.
        
        God...Joe, this is why you are so difficult to work with. A normal person would, upon being given evidence that their viewpoint is wrong, (in this case, COMPLETELY UNDENIABLE EVIDENCE) would change their views.
        You don't. You somehow work outside the normal laws of argument and debate.
        [ link to this | view in chronology ]
        
        LDoBe (profile), 19 Sep 2012 @ 3:17pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        That's called "Being a Crank" They move the goalposts in debates constantly in order to try to avoid the appearance of being wrong, while moving the goalposts is one of the things that make them wrong anyway.
        
        aj seems not to understand that one can lose a debate and still come out on top. It's a form of educated thinking. If you're willing to accept the undeniable facts that makes your initial argument wrong, and reexamine your own view point, you end up literally thinking better in some measure.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 Sep 2012 @ 3:32pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        aj is a troll. He's not interested in debate.
        
        If he was, he'd be here discussing with everyone ways to get copyright law fixed for the realities of the 21st century. But, that's not the way copyright maximalists operate. They have too much of a financial stake in ensuring that the current mess that is copyright law remains intact.
        
        They're trying to maintain control when they've already lost control. They're not getting control back. Ever. The internet will route around them.
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 3:47pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I am here to debate. I'd love to debate Mike. He won't though, 'cause he knows he can't.
        [ link to this | view in chronology ]
        
        Rikuo (profile), 19 Sep 2012 @ 3:49pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        Debate works when one side says "This is my argument", the other side says "You're wrong, because of Evidence Y" and the first side says "Oh, turns out your evidence is correct, undeniably so. My argument was wrong".
        When given undeniable examples you were wrong, you just simply declared you weren't.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 Sep 2012 @ 5:25pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I am here to debate.
        
        Prove it.
        
        Stop the endless ad-hom attacks. Realize that the current copyright laws do not (cannot) work with the realities of the 21st century. Be willing to admit the well-documented abuses of copyright power and reduction in public domain contribution are not providing consumers with many reasons to love the content industries, namely the gatekeepers. Provide ideas for changes to copyright law that bring it more in line with 21st century realities. Accept that content industries must adapt in order to compete with the on-going massive disruption. Accept that new and more draconian legislation, the sole purpose of which is protectionism for (at best) ineffective or (worst) obsolete business models, is not the way forward in the 21st century.
        
        Or, continue to bury your head in the sand and insist on doing what you've been doing.
        
        But, don't be surprised when people continue to label you a troll and don't take you seriously.
        [ link to this | view in chronology ]
        
        Cory of PC (profile), 20 Sep 2012 @ 6:39am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        "He won't though, 'cause he knows he can't."
        
        (laughing) That's funny, but no. Anyone can debate. Mike doesn't do it because he's busy doing other things more important than wasting time trying to argue with you over how you're right and he's wrong. He has a site to run and stories to look at and write. He has a life in the real world. Your life? Well it's pretty obvious what you do on a regular basis.
        
        Anyone can debate, Joe. Mike doesn't want to do it because it is getting old trying to get any sense into you, plus he has other things to worry about instead of babysitting you and some other stupid trolls bugging him to "debate" with.
        [ link to this | view in chronology ]
        
        A-Muse, 19 Sep 2012 @ 11:42pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        This is one of the most insightful comments on a copyright debate blog i have ever read... and this is why these debates degenerate into name-calling-fests....
        People spend all their time 'accusing' or defending'....
        I'd like to see more of the suggestions for amendments that i know the intelligent people here are quite capable of, instead of being distracted by all the head-butting.
        [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 10:39am
  
  Re:
  Speaking of going off all half-cocked, did you read this article? If you had you'd realize immediately that your quote, which claims that the only speech limited is speech that accesses or copies copyrighted speed without authorization, is making exactly the point that's being pointed to as being intellectually dishonest and wrong.
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 1:23pm
  
  The inherent conflict.
  Copyright Does Not Violate the Right to Free Speech.
  
  vs.
  
  Copyright Doesn�t Limit Online Speech.
  
  ...
  
  Bob, do you really not see the conflict between the concept of "free speech" and "limit online speech". Both have speech in common, which makes them related. Concurrently one has "free" and the other has "limit" in it, two diametrally opposed values. You can't have one AND the other. One of the two has to abdicate.
  
  It's either "limited speech" and "limited online speech" or "free speech" and "free online speech".
  
  To simplistic?
  
  I'll tell you what: When the philosophical concepts that led to our current laws were conceived, the possibility of instantaneous transmission of information wasn't in the minds of the wise people that finally based these laws.
  
  I'm sure paywall speech was not in their minds.
  [ link to this | view in chronology ]
- JMT (profile), 19 Sep 2012 @ 1:57pm
  
  Re:
  Honestly, Joe, attacking Mike's credibility (which you do in nearly every post you comment on) and being so incredibly hostile and degrading because you disagree (which you also do in nearly every post you comment on) just makes you look bad. Ever wonder why you're seen as an extremist? It's because of stuff like this.
  
  I'm amazed you irony alarm wasn't set of as you were typing that.
  [ link to this | view in chronology ]
  - average_joe (profile), 19 Sep 2012 @ 3:10pm
    
    Re: Re:
    There is simply no reason for Mike to be such a complete fucking asshole to Prof. Mossoff. None. It's unprofessional and childish.
    [ link to this | view in chronology ]
    - art guerrilla (profile), 19 Sep 2012 @ 5:25pm
      
      Re: Re: Re:
      *YOU* talking about 'unprofessional and childish' ? ? ?
      GTFOH
      
      either bot, or total authoritarian whack-job, which is it ? ? ?
      
      art guerrilla
      aka ann archy
      eof
      [ link to this | view in chronology ]
    - JMT (profile), 19 Sep 2012 @ 6:17pm
      
      Re: Re: Re:
      If that's your definition of being a "complete fucking asshole", then I struggle to find words to describe the way you act towards Mike and others here. Your behaviour is far worse, and far more childish. Your hypocrisy is galling.
      [ link to this | view in chronology ]
      - This comment has been flagged by the community. Click here to show it
        
        average_joe (profile), 19 Sep 2012 @ 6:33pm
        
        Re: Re: Re: Re:
        Claiming that the professor has "no credibility" is idiotic. Mossoff is very intelligent and respected. That Mike won't have a nuanced discussion about his own arguments shows me that he knows they're weak. I suspect Mike overcompensates for weakness with anger.
        [ link to this | view in chronology ]
        
        The eejit (profile), 20 Sep 2012 @ 12:38am
        
        Re: Re: Re: Re: Re:
        Wow, way to cherry-pick.
        
        The actual quote is a reference to the problem with working ntirely in ntheory and not actual practice. In theory, Mitt Romney is going to be a Fantastic president. However, given the way he ran his companies, I doubt he has the practical skills needed to run the presidency efficiently.
        [ link to this | view in chronology ]
Mesonoxian Eve (profile), 19 Sep 2012 @ 9:10am

Those who can, do. Those who can't, teach, then publish why they can't do.
[ link to this | view in chronology ]
N. Mailer, 19 Sep 2012 @ 9:33am

Thinking about copyrighted works
"The right to free speech is the right to express one's thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works."

This quote from Mossoff did not address the heart of the matter: the right to read, watch or listen to copyrighted works.

Does the First Amendment protect or imply the right to hear speech?

Or does the First Amendment allow the government to enforce a tax against me for simply reading, watching or listening to something? Because if that's allowed, the amendment is useless.
[ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 10:58am
  
  Re: Thinking about copyrighted works
  That's actually an interesting consideration. Thinking back on a few free speech cases; it's always been the speaker's rights at issue, not the recipient. I wonder if there's any case law out there by a plaintiff claiming his rights were violated by an inability to receive speech. And if the speech was copyright infringing, does that disqualify it from being protected?
  [ link to this | view in chronology ]
  - average_joe (profile), 19 Sep 2012 @ 11:06am
    
    Re: Re: Thinking about copyrighted works
    That's actually an interesting consideration. Thinking back on a few free speech cases; it's always been the speaker's rights at issue, not the recipient. I wonder if there's any case law out there by a plaintiff claiming his rights were violated by an inability to receive speech. And if the speech was copyright infringing, does that disqualify it from being protected?
    
    The Supreme Court has identified the First Amendment right to receive speech several times, e.g.
    Of course, courts should not �intervene in the resolution of conflicts which arise in the daily operation of school systems� unless �basic constitutional values� **2808 are �directly and sharply implicate[d]� in those conflicts. Epperson v. Arkansas, 393 U.S., at 104, 89 S.Ct., at 270. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused �not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.� First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978). And we have recognized that �the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.� Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965). In keeping with this principle, *867 we have held that in a variety of contexts �the Constitution protects the right to receive information and ideas.� Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); see Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972) (citing cases). This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender's First Amendment right to send them: �The right of freedom of speech and press ... embraces the right to distribute literature, and necessarily protects the right to receive it.� Martin v. Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (citation omitted). �The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.� Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (BRENNAN, J., concurring).
    Bd. of Educ. v. Pico, 457 U.S. 853, 866-67 (1982).
    
    I don't think anyone would have a right to receive copyright infringing speech though since ideas can't be blocked but particular expressions can.
    [ link to this | view in chronology ]
    - Josh in CharlotteNC (profile), 19 Sep 2012 @ 11:28am
      
      Re: Re: Re: Thinking about copyrighted works
      I don't think anyone would have a right to receive copyright infringing speech though since ideas can't be blocked but particular expressions can.
      
      Can the government block an individual from recieving speech which is not infringing?
      
      More specifically, can the government compell one party to block non-infringing speech to another party?
      
      What if the government is not compelling through use of force, but through the threat of financial ruin, or potentially ruinous liability?
      [ link to this | view in chronology ]
Anonymous Coward, 19 Sep 2012 @ 9:42am

One little arguement with Mike, but not against his opinion:

But Mossoff then claims this is crazy talk, because he has bought into the view that copyright is not the monopoly privilege that it is but that it's "property." Of course, that's hogwash. The purpose of "property" is to best allocate scarce resources.

Basically through copyright, the creator is creating an artificial scarcity. The product itself is not scarce, but the distribution rights associated with copyright create a monopoly for the creator. So I would suggest that it is more of an "artificial" property only created by the copyright itself.
[ link to this | view in chronology ]
- Sneeje (profile), 19 Sep 2012 @ 10:33am
  
  Re:
  This is something Mike and others have addressed before if you search on "artificial scarcity." The sum up though, if you have to create artificial scarcity around a good or some form of artful content, it can't be property.
  
  Even if there are those that can't agree on that, having to create artificial scarcity is, in economic terms, a major friction on the the economy and will prevent the efficient distribution of resources. And in business terms, it generally has a negative impact (is a friction) between you and your consumers. Consumers aren't stupid, they can tell when you are artificially restricting access to something for dubious reasons.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Sep 2012 @ 3:16pm
    
    Re: Re:
    *Same AC as above.
    I'm really not trying to argue, but I think your idea is basically Copyright abolition. Every work created would have to go directly into the public domain, since the very idea of copyright creates an artificial scarcity. I personally don't agree with this philosophy and would consider myself a moderate.
    Personally, I think copyright terms are way extended beyond a reasonable amount of time and I think more exceptions are needed for derivative works, but total abolition would create more problems than solve in the long term imho.
    Basically with that in place, it would create a grey market for every digital good to be purchased once and resold to anyone at any price thus cutting off all digital markets.
    [ link to this | view in chronology ]
    - nasch (profile), 19 Sep 2012 @ 6:18pm
      
      Re: Re: Re:
      Basically with that in place, it would create a grey market for every digital good to be purchased once and resold to anyone at any price thus cutting off all digital markets.
      
      That's already true, with a resale price of zero.
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 Sep 2012 @ 6:41pm
        
        Re: Re: Re: Re:
        With the sad after effect of people being sued out of existence for breaking copyright laws from creating derivative works.
        I'm not in favor of more laws to combat piracy, as I know that will always exist. I'm in favor of laws to promote growth that will enable developers, artists, etc to continue to develop new ideas off of the old. This is why I donate to TechDirt, The Internet Defense League, et al.
        [ link to this | view in chronology ]
    - Sneeje (profile), 20 Sep 2012 @ 6:45pm
      
      Re: Re: Re:
      The point trying to be made here over and over again, is that it isn't an idea, it's a fact.
      
      And yet the digital markets haven't died. People still pay for content and software even though it is available through other means.
      
      But the other important thing to consider, is that the friction of which I speak can be minimized--if copyright terms are reduced and if businesses learn to stop using them as a giant bludgeon there would be hope.
      
      Instead, head the other direction and it will continue to be a giant drain on resources that could be used by producers and consumers for other things.
      [ link to this | view in chronology ]
    - Sneeje (profile), 20 Sep 2012 @ 6:46pm
      
      Re: Re: Re:
      The point trying to be made here over and over again, is that it isn't an idea, it's a fact.
      
      And yet the digital markets haven't died. People still pay for content and software even though it is available through other means.
      
      But the other important thing to consider, is that the friction of which I speak can be minimized--if copyright terms are reduced and if businesses learn to stop using them as a giant bludgeon there would be hope.
      
      Instead, head the other direction and it will continue to be a giant drain on resources that could be used by producers and consumers for other things.
      [ link to this | view in chronology ]
N. Mailer, 19 Sep 2012 @ 9:44am

Thinking about copyrighted works again
Let me go firther -

The giverment cannot require me to obtain licenses for simply listening to someone's speech. That is a clear violation of the spirit First Amendment. It's an end-around comparable to teh poll tax.

The government also should not say to me, "I know you were only using your computer as a communications tool to watch a movie, but because of the technical mechanics of how your communications tool works, we have a legal loophole we can use to punish you as if you were a street vendor of bootleg DVDs and we're going to use it." This is punishment for accessing speech, and it won't be tolerated.

Finally, a third party, even a copyright holder, cannot be given government backing to step between an author and reader and say, "Drop that book. You don't have a license."
[ link to this | view in chronology ]
- weneedhelp (profile), 19 Sep 2012 @ 9:54am
  
  Re: Thinking about copyrighted works again
  Than damn giverment. Cant they mind their own business? They act just like the US Government. :)
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Sep 2012 @ 10:43am
    
    Re: Re: Thinking about copyrighted works again
    The giverment sounds like something set up to give me things. However, the government was apparently set up to take shit away.
    [ link to this | view in chronology ]
    - Anonymous Coward, 20 Sep 2012 @ 11:54pm
      
      Re: Re: Re: Thinking about copyrighted works again
      they're the giverment if you've got enough money to buy laws.
      
      takerment to everyone else
      [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 11:32am
  
  Re: Thinking about copyrighted works again
  Finally, a third party, even a copyright holder, cannot be given government backing to step between an author and reader and say, "Drop that book. You don't have a license."
  
  Interesting point. In the pre-internet world, in some countries, record companies could not go after retail live bootleg distribution without the explicit legal support of all copyright-holders thus the artists themselves. Thus could do nothing most of the time, to the point large retail stores were threatening the record companies to also distribute them.
  
  I'm pretty sure if that explicit creator/artist consent was made a requirement to any present takedown request, it would bring back some sanity in a system driven mostly by the copyright-holding corporations claiming to represent them.
  [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 5:20pm
  
  Re: Thinking about copyrighted works again
  "The giverment cannot require me to obtain licenses for simply listening to someone's speech. That is a clear violation of the spirit First Amendment. It's an end-around comparable to teh poll tax."
  
  You are correct. But you can only do that when the speech is freely provided without requirement for license ahead. However, if the speech is copyright, and not currently being given public performance, then yes, you need a license to listen to it.
  
  Quite simply, you cannot force someone else to provide you their speech. Free speech is a two way street.
  [ link to this | view in chronology ]
RD, 19 Sep 2012 @ 9:47am

Jackpot!
Wow this thread is going to be great! I'll be able to just riff down the list hitting "report" on aj and bob's comments without having to go through the brain-cell-murdering, soul-destroying effort of actually reading them. Should cut out about half the comments of the entire thread.

And no, that's NOT /s
[ link to this | view in chronology ]
- Anonymous Coward, 20 Sep 2012 @ 3:15am
  
  Re: Jackpot!
  Proof that you are a freaking jackass.
  [ link to this | view in chronology ]
Anonymous Coward, 19 Sep 2012 @ 9:54am

Copyright-expansion supporters are the ones consistently pushing laws for the implementation of monitoring, filtering and blocking mechanisms in all corners of the internet.

This includes error- and abuse- prone:
* automated censorship systems, including on live news streams
* unbalanced take down processes based on allegation
* unbalanced take down processes with no accountability enforced for abusers
* unbalanced take down processes with no appeal and time-limits enforcement
* mis-appropriation of material for profit (thanks Content ID)
* monitoring of people's communications and exchanges
* criminalization of natural non-profit social sharing behavior
* scapegoating regular people with disproportionate lifetime debts
* promotion of self-censorship for legit news & content side (protection for site who might infringe)
* News organization claiming copyright on news - how to best suppress embarassing news if you can't show the proof anymore
* shifting to a pre-emptive permission culture from impossible to locate rights holders
* transforming a pragmatic temporary leased incentive copyright monopoly of the creator into a near-permanent ever-extended "property", ensure no public re-appropriation can happen in one's lifetime.
* no obligation to copyright-holders to ensure creation preservation until it reaches the public domain - a kind of indirect lost culture censorship
* ...

We owe implementation & laws enabling easy unaccountable suppression of speech to copyright-backers.
[ link to this | view in chronology ]
- Rikuo (profile), 19 Sep 2012 @ 10:16am
  
  Re:
  And Average_Joe wonders why I'm completely anti-copyright...the cost to society of enforcing it is exactly what you've listed up there.
  Average_Joe...care to have a rebuttal? Maybe not to me, since I'm on your ignore list, but to the AC above, since they're not? Is that an acceptable cost for society to pay simply so an author can (maybe) have a cushy retirement?
  [ link to this | view in chronology ]
  - Ninja (profile), 19 Sep 2012 @ 10:22am
    
    Re: Re:
    He's too busy paying attention to the non-issue he mentioned above. Rather, I expect him to completely miss (or rather, intentionally ignore) the point here yet again if he chooses to reply.
    [ link to this | view in chronology ]
- Anonymous Coward, 19 Sep 2012 @ 5:25pm
  
  Re:
  "This includes error- and abuse- prone:
  * automated censorship systems, including on live news streams
  * unbalanced take down processes based on allegation
  * unbalanced take down processes with no accountability enforced for abusers
  * unbalanced take down processes with no appeal and time-limits enforcement
  * mis-appropriation of material for profit (thanks Content ID)
  * monitoring of people's communications and exchanges
  * criminalization of natural non-profit social sharing behavior
  * scapegoating regular people with disproportionate lifetime debts
  * promotion of self-censorship for legit news & content side (protection for site who might infringe)
  * News organization claiming copyright on news - how to best suppress embarassing news if you can't show the proof anymore
  * shifting to a pre-emptive permission culture from impossible to locate rights holders
  * transforming a pragmatic temporary leased incentive copyright monopoly of the creator into a near-permanent ever-extended "property", ensure no public re-appropriation can happen in one's lifetime.
  * no obligation to copyright-holders to ensure creation preservation until it reaches the public domain - a kind of indirect lost culture censorship
  * ...
  
  We owe implementation & laws enabling easy unaccountable suppression of speech to copyright-backers."
  
  Wow, what a bunch of horse shit this is.
  
  All of that balances against:
  
  "unbalanced use without license, without restriction, and without any punishment when caught (DMCA)".
  
  As for your non-profit social behavior, if it was only between you and your small social group, nobody would notice or care. But since you seem to think that everyone on the internet is in your immediate social circle, you have gone past the point of being reasonable. Don't expect the other side to be reasonable with you.
  
  The rest of your stuff reads like a 'Tardian hate screed. I think you need some professional help for your obvious anger. Oh and turn off your music and TV, because clearly you are violating copyright! Stop feeding the system!
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Sep 2012 @ 5:44pm
    
    Re: Re:
    We do. And yet we get called pirates all the same for media we don't partake in. See what the problem is here?
    
    The other side was never reasonable. They made that much clear when they decided that catching dolphins was an acceptable exchange for using driftnets (Cara Duckworth). That you claim the other side is reasonable when they spent years going on a misguided campaign of suing everybody is absurd.
    [ link to this | view in chronology ]
    - Anonymous Coward, 19 Sep 2012 @ 9:23pm
      
      Re: Re: Re:
      "We do. And yet we get called pirates all the same for media we don't partake in. See what the problem is here?"
      
      You aren't a pirate if you don't partake. But if you support and use the structures used to pirate (such as pirate torrent sites, file lockers, and the like) then you are still part of the game.
      
      "The other side was never reasonable. They made that much clear when they decided that catching dolphins was an acceptable exchange for using driftnets (Cara Duckworth). That you claim the other side is reasonable when they spent years going on a misguided campaign of suing everybody is absurd."
      
      Honestly, I think you need medical help, perhaps lithium. You have so many things mixed up in your head, that you cannot function. How you go from copyright to drift nets and think it's normal is beyond me. Do you honestly think that EVERYONE is out to get you?
      
      How do you live?
      [ link to this | view in chronology ]
  - Anonymous Coward, 19 Sep 2012 @ 11:43pm
    
    Re: Re:
    Chorus: "Home-sharing is killing music"
    Naked king: "All our customers must pay for their crime"
    [ link to this | view in chronology ]
Anonymous Coward, 19 Sep 2012 @ 10:24am

this proves that being a professor doesn't stop anyone from being an idiot as well!
[ link to this | view in chronology ]
Anonymous Coward, 19 Sep 2012 @ 10:27am

By the way, am I the only one having my computer rendered unresponsive for up to 30 seconds by the techdirt toolbar each time I load or refresh the site?
[ link to this | view in chronology ]
- jtp, 19 Sep 2012 @ 10:39am
  
  Re:
  I've noticed it too lately, on multiple connections.
  [ link to this | view in chronology ]
  - jtp, 19 Sep 2012 @ 12:43pm
    
    Re: Re:
    (My brain auto-pilot-translated 'computer' in AC's post to 'browser', not entirely sure if it's relevant in either case)
    [ link to this | view in chronology ]
- Digitari, 19 Sep 2012 @ 10:52am
  
  Re:
  yes, you are the only one, Reboot your PC and re log in, thanks
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Sep 2012 @ 11:43am
    
    Re: Re:
    I am the exception to your rule oh mighty omnimind! On the other hand, it only happens in firefox and is probably only connected to one of 16 junkwares running in the background.
    [ link to this | view in chronology ]
    - Anonymous Coward, 19 Sep 2012 @ 1:41pm
      
      Re: Re: Re:
      Problem is identified as exclusive to the "Say Media" tracker. Not a problem of the toolbar, sorry!
      [ link to this | view in chronology ]
- Anonymous Coward, 21 Sep 2012 @ 12:01am
  
  Re:
  the toolbar is giving me the shits! can we PLEASE have an option to permanently disable it?
  
  I'll donate, if I have to :-)
  [ link to this | view in chronology ]
  - Anonymous Coward, 21 Sep 2012 @ 1:53pm
    
    Re: Re:
    Go up to the top part of the TD page, and near the lower right part of the header you can select "preferences". It allows you to disable the bar. Caveat: It is contained in a cookie. If you regularly delete cookies you will have to go through this process each time.
    [ link to this | view in chronology ]
Anonymous Coward, 19 Sep 2012 @ 11:00am

This is a very generalized op-ed piece, and not a journal exposition on points being raised.

I had hoped to read the two publications you mentioned, but it appears that they are only available by purchase of each. In contrast, all articles I have looked for authored by Professor Mossoff I have found free of charge and in downloadable PDF format.

BTW, "property" is a legal construct that is not limited to the scarcity you continually proclaim is a necessary condition.
[ link to this | view in chronology ]
- Rikuo (profile), 19 Sep 2012 @ 11:12am
  
  Re:
  And "property" is a legal construct that is not limited to the scarcity you continually proclaim is a necessary condition...why?
  
  Come on. Tell me why. You can't just state "You're wrong" without providing a reason. That is not how debates work.
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 Sep 2012 @ 12:15pm
    
    Re: Re:
    Let me put it this way. Are your shoes "property"? Is your home "property"? Is your invention "property"? Is any song or movie or software app you may have created "property"? Of course not. They are things, and only things.
    
    Property comes into play as a legal construct by defining the relationship of one or more persons to such things. For example, you have "property in and to" your shoes, which is another way of saying that you are recognized under the law as having dominion and control of your shoes, and the law is available to secure your right in the event some third party interloper decides to interfere with your legal right.
    [ link to this | view in chronology ]
    - The eejit (profile), 19 Sep 2012 @ 12:27pm
      
      Re: Re: Re:
      IF my invention is my property, thewn something is seriously wrong.
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 Sep 2012 @ 12:53pm
        
        Re: Re: Re: Re:
        Importantly, I said only that an invention by itself is not "property", as is likewise the case with all the other examples I provided.
        [ link to this | view in chronology ]
        
        Sneeje (profile), 19 Sep 2012 @ 1:03pm
        
        Re: Re: Re: Re: Re:
        Technically you are correct, but you win the debate and lose the war. "Property" is a legal construct for the purpose of ownership. Using the legal construct is not, however, useful in this discussion.
        
        Property, as it is being used in this discussion, is meant to be using the *economic* definition. The reason for this is that the discussion is not about ownership, it is about the efficient use and distribution of resources. Things that have natural scarcity require, and by their very nature enforce, mechanisms for dealing with that scarcity. Generally the laws of physics enforce those mechanisms.
        
        Things with artificial scarcity require the ENFORCEMENT of the scarcity to be artificially generated, which is the friction and the fundamental problem here.
        [ link to this | view in chronology ]
Overcast (profile), 19 Sep 2012 @ 11:05am

WOAH! Wait now, I copy-wrote this concept a while ago - I'm suing to get it taken down.
[ link to this | view in chronology ]
iambinarymind (profile), 19 Sep 2012 @ 12:38pm

Copyright IS Censorship...
...and is immoral as it is based off of State force/coercion.

Without people calling themselves government claiming a monopoly on the use of force, there is no "copyright".

I prefer consensual relationships.
[ link to this | view in chronology ]
EF, 19 Sep 2012 @ 2:51pm

A working form of TD's business model successfully demonstrated AGAIN!
Mike - Through your content, you've given the trolls a Reason to Bitch (RtB). Through this forum, you've Connected with the Trolls (CwT) by allowing them to freely participate in the discussion, such as they do. Nevertheless, I am truly amazed by the formula's consistent effectiveness no matter where it's used. However, I'd like to test another effective Tech Dirt insight and offer the suggestion to implement a disruption to your own formula but in this case, it would end in a good way; enforce a paywall against the trolls (and watch them disappear!)
[ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

average_joe (profile), 19 Sep 2012 @ 3:25pm

Your whole article is so full of hatred and so poorly reasoned, I don't even know where to begin. I know you won't actually discuss anything you wrote so I'm wasting my time, but here's a couple points.

The purpose of "property" is to best allocate scarce resources. "Property" does not make sense either intellectually or economically for things that are not scarce, such as content. Copyright is not a property right, no matter how many times maximalists incorrectly insist it is.

Property is a legal term of art. You are using a very narrow, economic definition of the word. He is using the legal definition, which is broader. To imply that he's wrong or intellectually dishonest is itself wrong and dishonest. You pretend like your narrow definition is the only one that matters. Since he's talking about the law, it makes sense for him to be using the legal definition.

And why don't you tell all of your readers about how even you admit that copyright is "property" as that word is used in the U.S. Constitution, Mike? Please, tell everyone that you believe that. And given that even you believe that copyright is property under the Constitution, isn't it dishonest of you to then pretend that it's dishonest to say that it's property?

Afraid to let your readers know the truth?

Mossoff just brushes all that off, saying that since both copyright and the First Amendment are in the Constitution, there's no conflict:

In fact, both copyright and the right to free speech are based in the Constitution � in the copyright and patent clause in Article I, Section 8, and in the First Amendment.

Strangely, people are now claiming that one part of the Constitution is an unconstitutional violation of another part of the Constitution.

Of course, that's neither accurate nor "strange." First off, free speech is a right in the Constitution. Copyright is not. It troubles me that a "law professor" would make such an obviously false claim. The Constitution's Article I, Section 8 only grants Congress the right to create a copyright law -- explicitly for the purpose of "promoting the progress of science" (the "useful arts" stuff was about patents). To suggest that the Constitution establishes copyright as a right is simply false.

Mossoff said: "In fact, both copyright and the right to free speech are based in the Constitution � in the copyright and patent clause in Article I, Section 8, and in the First Amendment."

That is true.

You twisted it to say: "First off, free speech is a right in the Constitution. Copyright is not."

That's not what Mossoff said. Mossoff said that copyright is "based in the Constitution," and then he even cited Article I, Section 8. You had to lie and pretend like he said copyright is a right in the Constitution.

You set up a strawman only to knock it down.

I could go on and on, but I know you just want to shit all over Professor Mossoff's piece like an irate zealot. You don't actually want to have a nuanced discussion of the issues. You never do.

This article demonstrates everything that is wrong with you, Mike. There is no reason to be such a fucking asshole. Mossoff makes great points, and you're too much of a coward to even discuss them like an adult.
[ link to this | view in chronology ]
- Rikuo (profile), 19 Sep 2012 @ 3:47pm
  
  Re:
  What about you, Joe? Are you a reasoned man? What about earlier when you were given undeniable examples of copyright being used to censor First Amendment protected speech? A reasoned man would have said "Oh, so my initial belief has been proven wrong, thanks to this evidence. Okay then, I was wrong. My new belief is this".
  More importantly, what about this quote from Mossoff?
  " Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works. "
  Copyright does stop speech about copyrighted works! That's why fair use was invented, to say that although when Person X reviews Movie Y on Youtube and shows clips, it is determined he is not infringing. Otherwise, you'd have to ask to review or talk about copyrighted content, which is a crazy world to live in.
  [ link to this | view in chronology ]
  - art guerrilla (profile), 19 Sep 2012 @ 5:33pm
    
    Re: Re:
    rikuo don't lose that number...
    
    'cause you had below-average joe's number when you called him out on this a couple threads back, and as i recently posted:
    
    like many bots/authoritarians (impossible to tell apart without a tissue sample), below-average joe will not let lack of evidence influence the truthiness of what he is told to believe; conversely, NO AMOUNT of evidence contrary to his position will convince him otherwise...
    
    you've seen it time and again: *generally* picks microscopic nits; moves the goalposts from one sentence to the next, WILL NOT be pinned down on any answers, engages in personal invective, then goes on to bitch about how *OTHERS* engage in personal invective, repeats his 'winning' arguments ('mike is afraid to 'debate' me, blah blah blah') more times than an actual -or sane- human is capable of doing...
    
    bot or not ? ? ?
    does it matter ?
    
    art guerrilla
    aka ann archy
    eof
    [ link to this | view in chronology ]
- RadialSkid (profile), 19 Sep 2012 @ 5:32pm
  
  Re:
  And why don't you tell all of your readers about how even you admit that copyright is "property" as that word is used in the U.S. Constitution, Mike? Please, tell everyone that you believe that. And given that even you believe that copyright is property under the Constitution, isn't it dishonest of you to then pretend that it's dishonest to say that it's property?
  
  And where in the copyright clause of the Constitution is the word "property" used?
  
  And you can pretend all day that the article was full of hatred, and but I don't recall Mike ever calling Mossoff a "fucking asshole," a "coward," or anything even similar.
  [ link to this | view in chronology ]
  - average_joe (profile), 19 Sep 2012 @ 5:58pm
    
    Re: Re:
    And where in the copyright clause of the Constitution is the word "property" used?
    
    I said in the Constitution, but not in the Copyright Clause specifically. Mike said that copyright is "property" as that word is used in the Due Process Clause. The guarantee that no one can be deprived of property without due process of law includes copyright. In other words, since copyright is property, the government can't take it away without due process. If copyright weren't property, the government could take it without due process. So under the Due Process Clause, copyright is property. Just ask Mike. He agrees. So when he pretends like copyright isn't property, he's not being entirely honest (he's using a narrow, economic definition of the word "property," ignoring the constitutional meaning of the word that he admits includes copyright).
    [ link to this | view in chronology ]
    - Anonymous Coward, 19 Sep 2012 @ 6:25pm
      
      Re: Re: Re:
      Copyright is only "artificial" property as I stated earlier. It is only property in the sense that copyright creates an artificial scarcity from an economic standpoint. Without copyright right, any work created would fall into the public domain and be fair game for all to benefit.
      That copyright has violated first amendment rights is easy to show through the examples. I personally feel that criminal prosecution or loser pays would greatly reduce the amount of false DCMA notices and bring justice to the system. But the fact is that copyright, in general, is far from the societal ideas of the people has created a system that is flawed in the first place, so proper reform seems to be the only answer.
      [ link to this | view in chronology ]
      - average_joe (profile), 19 Sep 2012 @ 6:35pm
        
        Re: Re: Re: Re:
        That copyright has violated first amendment rights is easy to show through the examples.
        
        Can you point to one specific example above where copyright actually violated someone's First Amendment rights? Let's get specific.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 Sep 2012 @ 6:58pm
        
        Re: Re: Re: Re: Re:
        Well let's start by Mike's example of Dajaz1.com, a blog that was taken down due to DCMA due to RIAA members claims of copyright infringement due to the files that they themselves gave to the defendant. Kyle Goodwin, a third party not involved in copyright infringement, has his property seized without recourse due to a legal battle with his hosting provider. (Illegal in the US) Universal using the DCMA to takedown Megaupload's ad from YouTube through copyright law. NASA landing of curiosity taken down. President Obama singing taken down. Should I continue?
        [ link to this | view in chronology ]
        
        average_joe (profile), 19 Sep 2012 @ 7:21pm
        
        Re: Re: Re: Re: Re: Re:
        dajaz1.com is a piece of property. There was probable cause to believe that it was being used to commit criminal copyright infringement. This was demonstrated by an agent via affidavit to a neutral magistrate judge who issued a seizure notice for the allegedly tainted piece of property. The owners of that particular piece of property were not prohibited from saying whatever they want--they just couldn't use that specific piece of property. The First Amendment argument there is weak. Instrumentalities of crime get seized for subsequent forfeiture all the time. Just because that instrumentality is also used for protected activities is irrelevant. The owners of the property did not have their First Amendment rights violated. They had their tainted piece of property taken away, just like you'd take away any other instrumentality of crime.
        
        Goodwin had his property on the Megaupload servers. The First Amendment argument there is even weaker than dajaz1.com. It's a property issue. Goodwin himself dropped his silly First Amendment argument: http://ia600807.us.archive.org/2/items/gov.uscourts.vaed.275313/gov.uscourts.vaed.275313.91.0.pdf He's only arguing Fourth and Fifth Amendment right violations.
        
        Universal using the DMCA to take down an ad is not the government acting--without government action, there can be no First Amendment violation: http://rationalwiki.org/wiki/State_action_doctrine
        
        Same problem with your last two examples.
        
        You're just finding situations where copyright had an effect on speech, but not situations where copyright caused an actual violation of someone's First Amendment rights.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 19 Sep 2012 @ 7:56pm
        
        Digital Millennium Copyright Act
        I am not a laywer. (Spelled out, because I don't know if you know how the internet works.)
        How is it that a law passed by the house and senate on copyright infringement does not violate the first amendment, when it has clearly been shown to censor not only public domain works, but also political commentary by both democrats and republicans?
        
        Explain to me in simple language, such as School House Rocks. (Hopefully, this won't be censored as it's actually educational material.)
        [ link to this | view in chronology ]
        
        Scott, 19 Sep 2012 @ 8:03pm
        
        Re: Digital Millennium Copyright Act
        I heard of people on Youtube getting Copyright claims for public domain works.
        [ link to this | view in chronology ]
      - Scott, 19 Sep 2012 @ 7:47pm
        
        Re: Re: Re: Re:
        Especially what was going on YouTube. I been waiting for weeks for this sorta thing to be sorted out with my accounts. I did YouTube poop videos and other mash-ups.I did send counter notice through the web form but didn't go through because I said thing I shouldn't say. I didn't mean to say that or send so many counter notices through email to YouTube directly but I just wanted those strikes to be gone and my accounts back.
        [ link to this | view in chronology ]
    - HiggsLight (profile), 19 Sep 2012 @ 6:55pm
      
      Re: Re: Re:
      Hey AJ,
      
      This is off-topic I know (sorry everyone) but I don't think you're a troll. I think people misinterpret your comments because you're not having the same conversation as everyone else. There are also a lot of actual trolls here too so people are a bit quick with the accusation.
      
      The majority of participants here frame their comments as subjects of (or empathetic towards) unjust laws. You, a vocal minority, frame your comments from the perspective of a lawyer working within the law.
      
      Surely you can see how in such a situation a lawyer-type would be the definition of a troll entirely by default.
      [ link to this | view in chronology ]
      - average_joe (profile), 19 Sep 2012 @ 7:23pm
        
        Re: Re: Re: Re:
        I appreciate the fact that many here are only capable of results-oriented thinking. Mike makes all sorts of legal arguments, but he doesn't feel particularly constrained by the actual law. He can't have it both ways.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 20 Sep 2012 @ 10:06pm
        
        Re: Re: Re: Re: Re:
        but he doesn't feel particularly constrained by the actual law
        
        In what way does he not feel constrained by the actual law? Give solid examples with proof.
        [ link to this | view in chronology ]
Robert Reed Daly (profile), 25 Sep 2012 @ 9:39am

Prof.Mossoff's amnesia,& anti-SOPA Objectivists.
I will limit my comment to the original Techdirt article,as I have no time to debate the question of whether Intellectual Property rights are legitimate property rights or not (as Professor Mossoff is prone to say I am very, very busy.)
I will simply say that I believe that Intellectual Property rights are Property Rights ,& leave it at that (though legally of course they are treated differently as there is no fair use exception to my ownership of my physical property).
That said, as a Objectivist (like Prof.Mossoff) I feel compelled to point out that Prof.Mossoff does not speak for all (or even most) Objectivists when he offered his straw man defense of SOPA. (Anymore than I speak for all or most Objectivists) Indeed,a number of us devoted a great deal of time & effort to defeating SOPA. My reason for opposing SOPA was very simple:It was, and is defacto censorship;not because it prohibited the violation of intellectual property rights,but because,in practice,it needlessly placed the rights of the innocent at risk,& needlessly put Non-infringing content at risk of suppression.
(That and the trivial little matter of possibly fragmenting the DNS system,& possibly delaying DNSSEC)

It is absurd to argue that SOPA did not violate free speech rights, so long as it was intended to protect
Intellectual Property rights. It's comparable to saying that requiring a DNA test of all men who live in a neighborhood where women have been raped, cannot violate individual rights, since there is no "right to rape" .
It's akin to saying that requiring the Clipper chip to have been installed wasn't a violation of individual rights ,since the police have the right to get a warrant to wiretap phones.
Were we to apply Prof.Mossoff's standard ,we would not debate whether the state had the right to use this particular method to ensure that criminals could be wiretapped with a warrant,we would simply argue about whether the police should ever wiretap anyone, ever. We could even say that the clipper chip CAN'T be
unconstitutional since,after all,the constitution permits searches with warrants.
However there is one other point I wish to make: After the defeat of SOPA Mossoff published a Facebook note in which he addressed the due process argument ,essentially by saying that the requirement for a bond was adequate,(I disagree).(And no ,I don't have the link right now, if I find it, I'll post it).

He also said that those who said that SOPA was censorship,or that it would break the net,were spreading �package deals� (the Objectivist term for the fallacy of equivocation ) or �vicious lies�. He presented no evidence that the internet engineers were doing either.
I find it interesting, however ,that he seems to have forgotten that he ever knew of the actual arguments made against SOPA.
[ link to this | view in chronology ]
jebusgovernorofall, 18 Apr 2013 @ 1:42pm

the shills are out in force
how much does the RIAA pay to post all day espousing the supposed virtues of copyright laws, which ignoring/trolling all responses that rationally explain how copyright laws are often abused for non-copyright related ends? any way a brother can get in on that? hit me up!
[ link to this | view in chronology ]