To Argue That 'Copyright And The First Amendment Coexisted For 200 Years' Is To Ignore Reality
from the not-today's-copyright dept
Some guy trying to sell his book about how copyright infringement is all a big, bad plot of big, bad companies has a silly and ill-informed article trying to tarnish Aaron Swartz's reputation by making statements about what he believed and what he fought for that have little basis in reality. The article is chock full of confused statements, most of which aren't worth addressing (though, I will note that it is absolutely hilarious that he says that copyright "enabled" Bob Dylan -- given Dylan's famous penchant for blatantly copying of lyrics, melodies and even photographs and claiming them completely as his own).I do, however, wish to call out one ridiculously misleading claim, which I've seen repeated all too often by copyright maximalists, whenever anyone points out where copyright law and the First Amendment conflict:
First Amendment and copyright have co-existed—without terrible controversy—since the founding of the republic. Our Founding Fathers included a copyright clause in the Constitution (Article I, Section 8, clause 8), and in 1790 approved the first federal copyright law—before the Bill of Rights was even adopted. There are free-speech exceptions to copyright, such as Fair Use provisions, but Swartz's idea that the Supreme Court had some obvious "blind spot" was quite wrong. As described by the Supreme Court, copyright "is the engine of free expression."The idea that the two coexisted for over 200 years is an exaggeration bordering on an outright falsehood. The original Copyright Act of 1790 applied only to "maps, charts and books" and specifically covered "printing, reprinting, publishing and vending." Oh yeah, and you had to register the work. And the copyright only lasted for 14 years, renewable for another 14 years, if the copyright holder chose to do so. Oh, and we shouldn't forget that it really was only a violation if you printed the entire work. You could copy large segments of the work. So, basically, copyright covered a very small number of works, in very limited ways, for a fairly limited period of time. And, it's probably also worth noting that, at that time, the most successful US publishers weren't printing books by Americans, but rather books from English authors, which were considered public domain under US law.
Compare that to today. Since 1978, copyright in the US now applies to everything new and creative the instant it is in fixed form. That means pretty much everything, from that email you just sent your boss to the lovey-dovey note you direct messaged your significant other on Facebook, is technically covered by copyright. No registration necessary. It covers way more that maps, charts and books. It goes way beyond just printing, reprinting, publishing and vending (all ostensibly commercial activity) to any form of reproduction, distribution, performance or creation of derivative works. And it no longer just applies to the entire work, but also to tiny snippets of the work, with the marginal and extremely limited exceptions put forth by fair use -- which the courts have (incorrectly, mind you) stated is merely a "defense" rather than a "right." Oh, and it lasts the life of the author, plus another seventy years. And, yes, it covers foreign works as well.
These two things are not the same. At all.
Then, combine today's copyright with the massive technological change that is personal computing, mobile devices and the internet, which has created a massive amount of personal communications in digital "fixed" form (thus making much of it copyrightable) and we are talking about two situations that are not even remotely comparable. For most of the history of copyright law, there were very few circumstances under which it would interfere with basic expression and communication. Yet, with the 1976 Copyright Act and the rise of the modern internet / connected device era, nearly all basic communications are now covered by copyright. To suggest that there is no inherent conflict between copyright and the First Amendment today is to be willfully ignorant of reality.
Finally, Swartz was absolutely correct that the Supreme Court has a massive "blind spot" on this issue. It's glaring because the Supreme Court has refused, through multiple cases, to understand the differences described above -- even to the point of suggesting that "the traditional contours" of copyright law have not changed that much over time. If you'd like to read an unfortunately sobering, but incredibly detailed, analysis of the Supreme Court's blind spot on this issue, I highly recommend reading chapter 4 of No Law: Intellectual Property in the Image of an Absolute First Amendment. The authors of the book, David Lange and Jefferson Powell walk through, step by step, every mistake made by Justice Ginsburg in her ruling in the Eldred case, which directly takes on this particular issue. Here is just a brief snippet, though it goes really deep:
Justice Ginsburg's treatment of the plaintiff's threshold claim, that the Court should apply some sort of heightened scrutiny, is nothing less than bizarre. Unless she (and the other members of the majority) failed to see the Act as having any cognizable impact on any constitutionally protected expression at all, a student of the First Amendment cases would expect that the Court's initial response would be to determine which level or form of heightened scrutiny was appropriate, and then apply the proper scrutiny. The opinion takes a different approach, however -- one that appears essentially indifferent as to the reasoning the Court customarily uses in deciding First Amendment claims. Despite acknowledging (a bit later on in the opinion) the plaintiffs' reliance on a case, Turner Broadcasting Systems, Inc. v. FCC, which did employ intermediate level scrutiny, Ginsburg restates their argument as a "plea for imposition of uncommonly strict scrutiny" to the Act, implying (incorrectly) that there is something "uncommonly strict" about the use of intermediate scrutiny in reviewing content-neutral laws. (We presume she was not, more simply but even more strangely, mischaracterizing, as "strict scrutiny" in the doctrinal sense, the plaintiffs argument that Turner -- thus, intermediate scrutiny -- was the appropriate mode of analysis. If we are wrong about this, it would reenforce, in a different way, the air of inattention that hangs over the First Amendment discussion in Eldred.)It then goes on to discuss each of these assertions, and break down, very specifically, how they make little, if any sense. There are five assertions in all, but a few more snippets hopefully give you a sense of the issues. In discussing Ginsburg's suggestion that, since copyright law and the First Amendment both came at about the same time and involved the same people, there was no conflict, they point out that merely putting two laws in place at the same time does not automatically solve the issues:
Having set up, however inaccurately, the threshold inquiry into the proper level of scrutiny, Justice Ginsburg then immediately drops the issue. Instead, she continues with a number of observations amounting to asserations, each apparently meant to undermine the need for any sort of judicial scrutiny of the Act.
Nor can mere chronological proximity take the place of actual evidence in making claims about the Founders' views. The infamous Sedition Act of 1798 was enacted "close in time" to the First Amendment's adoption, but it has long been settled that the Sedition Act, rather than bein a valuable early interpretation of the First Amendment, was a violation of the amendment. As the Court observed many years ago, "[a]lthough the Sedition Act was never tested in this court, the attack upon its validity carried the day in the court of history." In other words, the founding generation, or many members of it, were capable of making a mistake about the implications and application of the First Amendment and, in the case of the Sedition Act, actually did so, even after a full debate on the constitutional issues. In the First Amendment context, it is clear that the "free speech principles" that the Founders constitutionalized cannot be narrowly defined in terms of the Founders' practices.Later, they rip to shreds the argument that the courts must defer to Congress on this, combined with the idea that fair use acts as a proper valve to "protect" the First Amendment. The problem there, they note, is that here's the Supreme Court basically saying, "it's not us, it's all on Congress," when the system itself specifically relies on the courts to determine the contours of fair use.
The opinion does not acknowledge, however, that the case law to which it refers also reveals a central attribute of the fair use doctrine, which is that it entrusts the decision about what counts as fair use (and thus may be included in expression) not to the individual (which is the norm ordained by the First Amendment), but to the courts.No matter how you slice it, the Supreme Court has a very clear "blind spot" to the areas where the First Amendment conflicts with copyright law, and part of that is a complete failure to acknowledge that the two have not actually "co-existed" for centuries, but that a massive change and expansion to copyright law, mixed with the fact that nearly all communications these days are covered by copyright, has created a very real problem -- the problem that Aaron Swartz kept trying to highlight, and which folks like the author of the column seek to ignore.
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Filed Under: copyright, first amendment, free speech, supreme court
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Oh man...
Seriously, we'll have over 200 comments on this, and I can almost guarantee it'll be the usual trolls too.
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I keep hearing that copyright monopolies equate to increased profits for artists and it's been debunked forty ways from Sunday.
I hear that corporations should have the ability to control copyrighted works yet the MPAA & RIAA disprove that notion monthly.
We look at the Supreme Court and their inaction destroys the public domain while Congress acts in the interests of the rich who but laws to protect them.
I just wish we had a strong argument for copyright instead of weak excuses based on out of context quotes and ignorance of the people that opposed monopolies and insane punishments for the public.
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That no one seems to have one tells us quite a lot. Sure, there are still some gaps, but those shrink as more data comes in.
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Seriously, we'll have over 200 comments on this, and I can almost guarantee it'll be the usual trolls too.
I assume I'm one of the "trolls" you're referring to. I'd love to discuss this article with Mike since it's about one of my favorite topics, but I know that he doesn't like to defend what he writes on the merits. He pulls out this "No Law" book frequently, and, of course, he doesn't mention that the book describes itself as "legal fiction." It's a bunch of normative arguments about what the law could be if the law were different than what the law actually is. That's fine with Mike. He doesn't like the actual law, so he's happy to latch onto "legal fiction."
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"Mike, why you no debate me?"
Big facepalm
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So when you say it is fiction and I say show me where the actual law is different than what is in the book, I mean show me something they cite that they made up out of thin air. Their opinions on the interpretation of the law and criticisms in saying that the Justices interpretation of the law does not count.
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Of course it's fiction. What a majority of the Supreme Court holds on an issue of constitutional law is the supreme law of the land. You may disagree with that conclusion, but your disagreement is "legal fiction," just like this book. No matter how much you think the Court is wrong, the Court's holding is the law and your beliefs to the contrary are by definition not the law.
Let's take another example. The Supreme Court says that the word "person" in the Fourteenth Amendment includes aliens. That's the supreme law of the land. You might think that "person" in the Amendment shouldn't include aliens, but that view is wrong as a matter of law. No matter how much you think it shouldn't include aliens, the fact is that it does.
There is law and then there is interpretation of the law. There is a difference. Precedent matters only because it HELPS with interpretation but that doesn't mean that future judges have to follow previous precedents.
The CTEA doesn't violate the First Amendment as a matter of law. That is in fact the supreme law of the land, and no court can legitimately hold otherwise. Just like no court can say that "person" doesn't include aliens when interpreting the 14th Amendment. Future judges MUST follow it. If they don't, they absolutely, positively will be overturned on appeal.
Therefore the interpretation of Eldred is not the law. It is a precedent on the interpretation of the law.
The majority opinion in Eldred is the supreme law of the land, and it binds all inferior courts. You don't appear to grasp stare decisis or the relationship of the Supreme Court to the inferior courts.
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Nobody's arguing otherwise (although I could, if I wanted to, but it would be a pedantic argument.)
However, there's a lot of "supreme law of the land" that is clearly unconstitutional. Just not in the eyes of the law.
No, disagreeing with the conclusion is not "legal fiction". It's "having a different opinion."
When the supreme court rules, that they made the ruling is a fact. However, the arguments and substance of the ruling are nothing but opinion. Opinion that has the weight of law, but opinion nonetheless. Having a different opinion is not "fiction" by any definition of the word.
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The Court doesn't usually flaunt it, but every once in a while they remind people that their interpretation is controlling and is in fact the supreme law of the land. There's a case I saw a year or so ago where they flaunted it. I'll try and find it for ya.
However, there's a lot of "supreme law of the land" that is clearly unconstitutional. Just not in the eyes of the law.
That's a non sequitur. If the Court says it's constitutional, then it is. The Court is the final arbiter. They say what the law is. You might have reached a different conclusion, but you don't get to say what the law is. Only they do.
No, disagreeing with the conclusion is not "legal fiction". It's "having a different opinion."
What the Supreme Court says is legal fact. It actually controls the actual issue in actual people's lives. What you think to the contrary is legal fiction. It doesn't actually control the actual issue in actual people's lives. It's believing that something is blue when the people who authoritatively get to decide what color something is say it's not. You can think it's blue all day long, but that belief is erroneous.
When the supreme court rules, that they made the ruling is a fact. However, the arguments and substance of the ruling are nothing but opinion. Opinion that has the weight of law, but opinion nonetheless. Having a different opinion is not "fiction" by any definition of the word.
If it's holding, it's the law and it binds all inferior courts. It's the actual answer on the actual issue in actual people's lives. It's the rule that controls the issue. Period. Holding = legal fact. "No Law" + Mike Masnick = legal fiction.
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Well... that's basically how things work in practice, yes. But while the Court doesn't usually admit to it, every once in a while they remind people that they're only human, and sometimes make mistakes, and should be called on it.
For example, in Lawrence v. Texas, the Court not only overruled their own previous decision in Bowers v. Hardwick, they had this to say:
The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. ... Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
Long ago, there were two different sorts of courts in England. There were the courts of law, which could be harsh and inflexible, and there were the courts of equity, to which appeals could be made for the law to be relaxed in such cases. A lot has happened since then, and things have gotten ossified as time marched on, but we should not forget that a legal system for humans, administered by humans, should incorporate some flexibility, empathy, charity, and humility. When the law itself is wrong, even those charged with the safekeeping and application of the law have a higher duty to their fellow men than they do to some dusty code.
Now, copyright is not nearly as important as a whole host of other issues. But if it gets bad enough, you may find that Eldred is not quite the pillar of strength that you think it is.
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For example, in Lawrence v. Texas, the Court not only overruled their own previous decision in Bowers v. Hardwick, they had this to say:
The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. ... Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
No doubt, the Supreme Court can overrule itself. But it is the only court that may legitimately do so without violating the Constitution. Any court claiming otherwise is itself violating the constitutional and inexorable command of due process of law.
Long ago, there were two different sorts of courts in England. There were the courts of law, which could be harsh and inflexible, and there were the courts of equity, to which appeals could be made for the law to be relaxed in such cases. A lot has happened since then, and things have gotten ossified as time marched on, but we should not forget that a legal system for humans, administered by humans, should incorporate some flexibility, empathy, charity, and humility. When the law itself is wrong, even those charged with the safekeeping and application of the law have a higher duty to their fellow men than they do to some dusty code.
You try and brush off the current interpretation of the Constitution as some dusty code that can be legitimately ignored. Far and few between are times when your notion of justice are in fact just. Your burden is heavy here, and you haven't even begun to lift it.
Now, copyright is not nearly as important as a whole host of other issues. But if it gets bad enough, you may find that Eldred is not quite the pillar of strength that you think it is.
Eldred is and will remain the supreme law of the land. Ignore it if you wish, but that doesn't change reality. Only those who ignore reality claim that Eldred violates the Constitution.
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No, just tempered with a sense of humanity.
Far and few between are times when your notion of justice are in fact just.
Oh, and what do you know of my notion of justice?
Eldred is and will remain the supreme law of the land. Ignore it if you wish, but that doesn't change reality. Only those who ignore reality claim that Eldred violates the Constitution.
Eldred was wrongly decided. But as I said, things will get worse before they get better. But remember this valuable wisdom: All things shall pass.
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Any two bit moron understands the Supreme Court has the final say as a matter of practical application.
You are about worthless. THIS is why no one debates you.
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I can talk you that... Inducement. They made that up even though it was never in the law. You can see how that has hurt the US market considerably.
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The idea that inducing someone to break the law makes the inducer liable for the resulting lawbreaking is centuries old. It's just old wine in a new bottle, not something pulled from thin air.
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Wrong. While the idea is old, it was never passed in Congress. The Supreme Court passed that into law with their Grokster decision. Which is my point.
And since that decision, innovation in the cloud service industry has declined and gone to other countries with better laws.
I guess this is the party where I tell the SC "Nice job breaking it".
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Yep, the Supreme Court applied an old common law principle to a new situation. That's old wine in a new bottle. They do it all the time and have for centuries. The notion that judges make law this way is rather unremarkable. For some reason, when it's on the internet, you guys think it's all new and different. It isn't.
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Judicial review is a fact of democratic life, and its legitimacy stems from the will of the governed. When you get the votes for your anarchistic utopia where the rule of law and the power of the majority mean nothing, wake me up and let me know.
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Dred Scott is but one example here in the US that polarized views on slavery.
Right now, it's Citizens United. Learning about some of the most corrupt SCs of yesteryear is fun, but it is indeed dangerous to have a Supreme Court with that power.
Because of judicial review, the public lost 4th Amendment rights in the drug war. Police lie on a regular basis for convictions and money for funding. Hell, on a daily basis, you can hear about police killing innocents, getting paid leave, and no punishment.
Because of judicial review, people have less 1st Amendment protections than corporations. In regards to copyright, fair use as a defense works less if you have a baby video with music than if you have a million dollars to sue people.
Oh, and I'm not an anarchist, btw. I just now that since 1803, Judge Marshall took the power of judicial review which the Congress can elect to take back nullifying it since the legislative branch is the one that makes the laws.
So wake me up when you actually are aware of how government works.
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The fancy term for it is counter-majoritarianism. http://en.wikipedia.org/wiki/Counter-majoritarian_difficulty
I'm not surprised you don't understand the implications of having a Supreme Court with the power to overthrow elected officials.
I do understand it. I took a class last semester where all we did was read the major writings on the issue and discuss them. It's a difficult subject, with lots of views on the pros and cons.
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Not sure if just taking a class helps explain the problem though... Given how the system had been set up with the idea being we have nine wise elders just seems far too undemocratic and far too close to a faith-based belief that these none can do no wrong.
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Still that was not the point of contention. His argument was that the arguments that the decision by SCOTUS were in error made in the book were legal fiction because the decisions by SCOTUS WERE the law. My contention was that the written law is the law and decisions made by SCOTUS were merely interpretations of the law. The judicial branch does not write laws. They only interpret them.
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And the Court's interpretation of federal constitutional issues carry the force of law exactly the same as do statutes. They are not "merely interpretations of the law." They are in fact the law. The supreme law of the land, in fact.
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The book itself admits that it's "legal fiction" in the introduction. You don't have to take my word for it, you can take the word of the authors. The book does not describe the actual law, but instead it argues for a different way of looking at things that differs from the actual law. It is by its authors' own admission normative, not descriptive or predictive. You can argue all day long that aliens shouldn't be "persons" under the 14th Amendment, but your claims will be legal fiction since the Supreme Court has consistently held otherwise. It not semantics to call the book what it in fact is, legal fiction.
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This is a blatant misrepresentation of the book. I do not know if it is because you haven't read it, or you are being willfully misleading. The "legal fiction" they are discussing is *the second half* of the book, in which they envision a different system than the one we have today.
The parts that I quote and refer to are *the first half* in which they detail the problems of the system today, such as those discussed above.
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They say that the manuscript is legal fantasy. Even the parts you quoted make normative arguments for what they think the Court should have said.
You quote: They are arguing that the Court should have treated the CTEA as any other content-neutral or content-based restriction on speech. The fact is that the Court gives substantive copyright laws sui generis treatment. They are not analyzed under the content-neutral or content-based frameworks. The Court didn't misapply its own test. The Court gets to decide what the test should be. They are the body that makes the tests. The test they use when it's copyright is different, but it's legal fiction to say that the test they use is wrong. The Court explains why they use a different test. It's all right there in the opinion. Golan clarified that they meant what they said. You might prefer to use a different test, just as the authors do, but that's legal fantasy. It's not describe what the actual legal test is that's used to decide actual people's rights in an actual court of law. It's wishing that things were different than they really are.
The Framers contemplated copyright and explicitly gave Congress the power to make copyright laws. The Sedition Act was in response to political things that were happening in the world, like the war with France. So what? The two situations are significantly different. Are they arguing that the 1790 Act violated the First Amendment and nobody noticed it because they weren't smart enough? It's a very weak argument. Obviously the Framers thought that copyright was consistent with freedom of speech. That's why they put it in the Constitution. The Sedition Act was under the 5th Congress, while the 1790 Copyright Act was under the 1st. Was it even the same people?
Yep. The Court treats copyright differently than other speech restrictions. The Court explains why it's different in the opinions. Engine of free expression, built in safeguards, and the like. The authors are making the normative argument that First Amendment doctrine vis-a-vis copyright should work differently than the Court actually does it. The fact remains that the authors are arguing that things should be different than they actually are. That's legal fantasy, not descriptive writing.
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If a specific issue has already been decided by a superior court, then an inferior court must follow that precedent. If it controls the issue, then it controls the issue. You seem to be suggesting that superior court opinions are persuasive authority for lower courts. They're not. They are binding authority.
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Every post will contain at least one factual inaccuracy.
Most will contain at least one adhominem attack
Many will refer to "piracy" as if the word means something when applied to peer-to-peer communications.
If I ever see a coherent troll here, i will pay them myself.
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What about Rojadirecta?
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Can you explicate what you mean by "the rest"?
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Anyway, you didn't say this, scarat, so I won't be addressing your points, but from the article... (this standing on the shoulders of "FIRSTIES!!!" is not a tactic to be dismissed) ANYWAY!:
So basically, your argument is that copyright was fine for about two hundred years? But not now, in the last couple of decades--Gee! I wonder what could have changed in those last few decades? It couldn't possibly be that a horde of people have seen it as their right to run roughshod over the internationally recognized human rights of individuals the world over?
And I'm not sure what you suggest by the evil behind the fact that "you" own your own communications with your boss. Do you mean that communications between an employee and his boss should always exist under the scrutiny of the public eye? How does that jigsaw together with Wikileaks?
Indeed, it did and still does only cover a small number of "works." It specifically covers the work that I DO. It also works that way for any schlep like myself trying to work his way out of drudgery. Your fantasy of a world where innovation is CHILLED!!! is easily debunked by pointing out, oh... I don't know, maybe the last thirty years of amazing advances? I'd say it extends farther than that, but you're claiming that copyright currently stifles innovation to the point where we are now left with nothing more than, I don't know, the internet? That which allows an amazingly unrestrained method of communication.
Are you suggesting that we'd be on Mars, in flying cars, living in a domed city, everything so pretty, if only it weren't for this GODDAMN copyright?!
Sorry, but it's more than a little hard to feel oppressed right now, as I type this sentence.
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Many of our Founding Fathers were absolutely against patents and copyright, knowing full well how they were abused to stifle free speech (hey, is that important?) and to prevent the public from accessing works which were important (yep, sure looks like it).
This is why there was a 14+14 limitation and over a very small band of "works" (which were more to protect plagiarism than copyright, given how easy it was to claims works of someone else. Right, Mr. Edison and Mr. Bell?).
"Some guy" shouldn't waste our time. Instead, perhaps write another book and title it "Why Everything Posted on the Internet is a Fact".
Because it is, you know.
*cough*
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I see nothing wrong with this at all.
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A 56 year copyright would be a doubling of the 28 year copyright. Since the average life expectancy is now about 78 and has not doubled that seems more than fair.
As far as providing for a child I find it highly irresponsible that a father has not purchased term life insurance to cover the possibility of their demise.
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Can you point to the part where it says Copyright should provide for the heirs of content creators?
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Even if that was the case (its not, as a previous poster brought up infant mortality), how does that idea line up with copyright now lasting the entire life of the author plus 70 years beyond that?
Life + 70 guarantees that a creator will be able to pass along the rewards of their creative endeavors to at least one heir, and for at least the length of an average lifetime.
My father is a teacher. He needs to be extremely creative to be effective at his job. If he dies, should the school be obligated to keep paying his estate (me and my sister) for 70 years? My father should be guaranteed to be able to pass along the rewards of his creative endeavors to his heirs, right?
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Like it or not, monetary incentives are absolutely used as a tool to promote the progress of the arts. The reason is simple: everyone needs money to survive. To choose to make a living as a creator is an incredibly risky move financially, and without monetary rewards, many will forgo creating to follow a less risky path. They might still create, but less time will be spent creating if they are working elsewhere to survive. That wouldn't be considered contributing to the progress.
The fact that we have laws to protect and reward creators is a wonderful thing in our society and it's shocking to see some people opposed to it.
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Oh, and I'll just leave this here.
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That's the way it works in the real world. Unless I purchase life insurance or save enough money from working everyday to get my pay, my children get nothing.
Why should musicians be entitled to more than anyone else?
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I respectfully disagree.
Talented Master Plumbers are even more rare and enrich society much more than musicians could ever dream of (unless you prefer drawing water from a well with a bucket and shitting in a hole) and they don't get similar protections from the work they have done in the past.
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Notice I said "Master Plumber". You have to be educated and must be an apprentice for years before becoming a licensed Master Plumber. There are infinitely more professional musicians out there than Master Plumbers.
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Now don't get me wrong. I am a copyright revisionist, not a copyright abolitionist.
I believe as a society we should give creators a monopoly to monetize their creations for a limited time. Limited as in 10-20 years max. If you want something to give to your heirs, then it should be up to you to maximize your returns within that limited time and save some of that for your children's future, just like the rest of us. The purpose of copyright has never been to be a trust fund for your children.
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I guess "copyright minimalist" is closer. I believe copyright should revert back closer to what it was originally in the US.
"Copyright originalist" maybe?
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Talented musicians are a dime a dozen, which you'd know if you hung out around live musicians. Talented musicians that are willing to sell their souls and heath to a system that will profiteer off of them AND their fans in order to become megastars are a rare commodity, and they are every bit as evil as the greedy no goods who use them to get rich in their stead.
I'm so, so, SO incredibly sick and tired of hearing how without copyright people who play pretend, sing, and dance for a living will stop playing pretend, singing and dancing.
So the &*$@ what?
Get real.
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Oh RIAA... you need more tact
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Is like saying that an artificial monopoly and free market can coexist.
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But yet, copyright believers seem to think that they, above all civilisations who have tried to regulate free speech and failed, do have the ability to decide when and where free speech is permissible? If I want to tell a story about Twilight, in order to portray the main characters as corporate leeches by using certain symbolism for example, and express ideas of my own that symbolically present Twilight in a new and enlightened way, why am I not allowed to do that? Why is it that "parody" is the only thing allowed to get away with this? What if the deviation is not humourous? It is not just speech that has to be free, it is expression, and every time you restrict me from telling a derived story in a way I see fit you are denying me the right to delivery a certain metaphorical message that may necessarily entail the use of characters and plot lines.
Fan fiction is illegal, because it is published creativity using someone else's work. Fan ART also falls into this category, making deviantArt the biggest copyright infringing website on the web - even bigger than storage lockers like MegaUpload. Are we really to say that everybody participating in this mass infringement is in the wrong? The MPAA never will have the balls to see this through, because the resulting backlash would absolutely DWARF that of the backlash against SOPA (then again, the rationality of the MPAA is not always up to standard, so I can't guarantee that websites like deviantArt will be left alone). Now my follow up question is this: why should fan artists and fanfiction writers be allowed to write deviations, but not those who wish to open up a commercial market on that basis? What makes fan artists more significant? If you believe in copyright, you have to in this case either question the fundamentals of copyright or demand that deviantArt be shut down.
"Sure, you can express yourself... but only in ways that we approve of. So no expressing other people's expressions" is basically what copyright believers are saying, and the only reason why fan art is permissible is that its too big a phenomenon to dare challenge, even although these fan artists get tons of publicity and therefore secondary profits from other things they may be allowed to sell. Fuck that. I'm not letting the philosophy of copyright try to say it is competent enough to "know" when certain speech should not be permissible when it cannot face up to these other challenges.
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Exactly!
Everything you said... Just perfect.
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Copyright has benefits to way more people than those two trade groups and has been the law of the land since the inception of the US. You don't lobby your way out of that one.
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Funny how despite supposedly buying less politicians, all the rulings from the government seem to be for the *AA's and never against them.
Also, congrats on commenting on the article without actually having read it, can't figure out how else you would have missed the rather massive point of how much copyright has changed since it's inception.
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http://www.opensecrets.org/lobby/top.php?showYear=2012&indexType=i
Computers/Internet $ 132,197,268
TV/Movies/Music $117,173,340
National Cable & Telecommunications Assn $18,890,000
Comcast Corp $14,750,000
National Assn of Broadcasters $14,510,000
Google Inc $16,480,000
Recording Industry Assn of America $5,068,387
Motion Picture Assn of America $1,950,000
For 2011:
Google Inc $9,680,000
Recording Industry Assn of America $5,706,844
Motion Picture Assn of America $2,140,000
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And besides. It doesn't have to be just ONE organization. You could effectively try to bait them into attacking multiple.
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Now if only strong-arming for being able to use music in more ways for less money could turn into helping out the actual artists instead of the corrupt trade organizations "representing" them.
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The MPAA and RIAA do not represent artists, but the studios and labels who are publishers making a living off of the works created by others, and usually ripping them off.
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The freedom to speak is ours to win or loose.
Ownership and control that transcends the intent of copyright must be purged. The imposition on culture by a culture based upon permission deserves neither respect nor obligation. Burn.
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Zazzle
I tried to post this image for sale there and was told that the title was copyrighted.
In case you can't see the image, the title is "Return of the Jet Eye"
I gave up on using Zazzle.
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The wrong constitutents.
It's no longer important that a farmer have any rights to his personal property or to the fruits of his own labor. What matters is whether or not some large corporation can make large amounts of money.
Imagine what would happen if you told George, or Thomas, or John that he couldn't replant seed from his own crop.
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Re: The wrong constitutents.
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Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
"Some guy", indeed. What a childish little dig. And you go down from there, into your characteristic pejoratives.
Aaron Swartz shouldn't have taken the data that JSTOR had put into a library: that's a reasonable claim to it, librarying is harder work than you -- who've never actually worked for a living -- know.
Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where arrogance meets ignorance to discuss what they'll do with someone else's 100 million dollar movie.
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Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
Let's see...he's got college degrees, runs companies, writes multiple articles a DAY five days a week for a blog, consults with businesses who want advice...and somehow, somehow, that translates to "He's an unemployed bum".
When...WHEN ARE YOU GOING TO POST ACTUAL ARGUMENTS? Instead of the most easily refutable ad homs imaginable?
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Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
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Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
What a bellend
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I understand it, yet I'm still going to click the report button because your post is off topic and full of ineffective (and bizarre) trolling.
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Oh good, troll time!
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Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
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Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
How's that "piracy" thing working out for ya?
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Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
(No, the above is not a typo. The way these people inbreed themselves they've probably managed to fulfill the above familial paradox...)
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First Ammendment Came Later and Therefore Supercedes when there is a conflict
"1790 approved the first federal copyright law—before the Bill of Rights was even adopted"
He seems to be implying that the Federal Copyright law gets some sort of priority because it is older than the 1st Ammendment. But the reverse is true, ammendments are meant to modify that which they are ammending. When there is a conflict between the original text and an ammendment, the ammendment supercedes the original.
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The first conflict between copyright and culture arose when home recording became possible, but due to cost of media, actual copying was limited, and the courts forced the publishers to live with recording devices.
With digital computers and the Internet copying and sharing culture is an easy and cheap operation. The tools are also available for remix and transformative use of existing works. This is returning culture to its roots, the sharing and re-use of cultural works by everybody who wants to create. This allow people to be more expressive, and say thing in a more meaningful way.
The problem is that the publishers have over the years extended copyright to include almost all uses of a work, and any derivatives. This has set up a situation where they think that they need to control the means of copying and distributing works, and this is incompatible with the existing Internet, and general purpose computers. For the publishers to gain the control over the works that other produce for them they will have to obtain control over the Internet, and all computing devices in the hand of private citizens.
It is more than a matter of a choice between copyright and free-speech, and more that of between a free society or one run by a totalitarian oligarchy of corporation owners. The history of the extension of copyright by publishers, rather than the creators of works, would indicate that it will be easier to hold the line of no copyright, than and reduced form of copyright. This is especially so as the cost of fighting lawsuits has been used to effectively extend copyright by making giving in to copyright bullied the only alternative to going broke trying to fight them.
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It's funny...
Imagine no copyright.
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Another problem with the Internet...
That is, in order for me to read your article (and for you to read this comment) a brand new copy HAD to be made.
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Ha!
Yes. Lennon. From his mansion? Or from his Central Park West luxury apartment in Manhattan? Or was it when he was cackling from the built-in microphone in his Rolls Royce? Or maybe the Ferrari? Or his fleet of Benzes?
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You can look it up. It was a major point of contention among the group and their producer and engineers.
Ah, the internots. So much entertainment.
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Mike--
It is a fact that from 1790 to 1970--180 years--the idea that the Copyright Act could violate the First Amendment was not discussed by the courts or the commentary. That changed in 1970, when Melville Nimmer published his seminal article: http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/uclalr17&div= 65&id=&page=
The gist of the argument is that if the Copyright Act so clearly violates the First Amendment, then why did it take 180 years before somebody thought to ask the question? I think your arguments are extremely weak, and I'd love to hash this out with you on the merits today if you have time. You claim that it borders on "outright falsehood," but your supporting arguments aren't in the least bit persuasive. For starters, how can you deny that this 180 year isn't probative?
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The gist of the argument is that if the Copyright Act so clearly violates the First Amendment, then why did it take 180 years before somebody thought to ask the question? I think your arguments are extremely weak, and I'd love to hash this out with you on the merits today if you have time. You claim that it borders on "outright falsehood," but your supporting arguments aren't in the least bit persuasive. For starters, how can you deny that this 180 year isn't probative?
I'm in meetings all day today. Just saw this and really it proves (yet again) why debating with you is pointless. I have an entire article above answering the very question you ask here. And you ignore it entirely.
You're not here to debate. If you were, you wouldn't talk about the 180 years and not admit to the changes in copyright law.
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You're not here to debate. If you were, you wouldn't talk about the 180 years and not admit to the changes in copyright law.
So are you going to stick around? If so, I'm happy to go through your points one by one. Let me know. I truly am here to debate you.
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My point is this: So what? Do you think the 1790 Act violated the First Amendment? If not, at what point in the development of copyright law do you think things started violating the First Amendment? What specifically is your argument here?
And you did not answer my question: Do you agree that the 180 years of nobody talking about a conflict between the two is probative of there being no conflict? I understand that a lot changed in that time, but the basic fact remains that from day one things were protected by copyright. Sure, the 1790 Act was different in some ways. But it wasn't different in that it by design affected freedom of speech. The 1909 Act covered lots of things that the 1976 covers, yet no one said anything about that Act for 60 years. Don't you think the absence of First Amendment challenges or discussion in the commentary shows something? If so, what do you think it shows?
Love to hear your thoughts. We can run through the points in the article too. I am absolutely to discuss this on the merits. I hope you will oblige. I hope you won't give cryptic non-responses and then run off. It's cute that you pretend like I'm the one who doesn't want to engage on the merits, but I know you know that it's you who doesn't. Think I'm wrong? Prove it by discussing things directly.
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Nothing new here if First Amendment Absolutism is the basis upon which analysis proceeds. Problem is...the First Amendment is not, and never has been, an absolute.
Yes, copyright law and the First Amendment have co-existed for over 200 years. Fair use is a judicial doctrine that developed as federal common law when and as cases were presented to the Supreme Court that led it to examine the relationship between copyright law and the First Amendment. Just because examination of the relationship arose later in time is hardly a reason compelling the assumption/conclusion that the former is trumped by the latter.
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True under the Copyright Act of 1790, but not necessarily so under the Copyright Amendment of 1802.
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