To Argue That 'Copyright And The First Amendment Coexisted For 200 Years' Is To Ignore Reality

from the not-today's-copyright dept

Thu, Feb 21st 2013 11:54am — Mike Masnick

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.)

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.

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:

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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silverscarcat (profile), 21 Feb 2013 @ 10:22am

Oh man...
The trolls are going to go ape-shit over this article.

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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Akari Mizunashi (profile), 21 Feb 2013 @ 11:54am

"Some guy" should also do a hell of a lot more research on the history of copyright. While Mike did cover a good portion of the limitations, what "Some guy" should know, as well, is the US Constitution would not have been ratified by many states unless Article 1, Section 8, Clause 8 was added.

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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Zakida Paul (profile), 21 Feb 2013 @ 12:01pm

Re: Oh man...
Yep, the shitstorm on this article will be mighty entertaining.
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Rikuo (profile), 21 Feb 2013 @ 12:03pm

Re: Oh man...
I've got pizza, Kool-aid, rung in sick for work tomorrow, disinfected the keyboard, pre-paid the Internet and electricity bills...did I forget anything else in terms of preparation?
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Jay (profile), 21 Feb 2013 @ 12:13pm

Re: Oh man...
I just wish the actual arguments had merit.

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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Rikuo (profile), 21 Feb 2013 @ 12:16pm

Re: Oh man...
Guys, I take dibs on the guy who says that the law isn't getting involved, that its purely the TOS at issue here, and the TOS alone. I've got a bone to pick with that guy.
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Josh in CharlotteNC (profile), 21 Feb 2013 @ 12:21pm

Re: Re: Oh man...
I just wish we had a strong argument for copyright

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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weneedhelp (profile), 21 Feb 2013 @ 12:21pm

Re:
I am a french model. :) Bonjour!
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Rikuo (profile), 21 Feb 2013 @ 12:24pm

Re: Re: Re: Oh man...
That's why I live by this quote "Extraordinary claims require extraordinary proof". Thank you Carl Sagan/Marcello Truzzi!
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Josh in CharlotteNC (profile), 21 Feb 2013 @ 12:25pm

Re: Re: Oh man...
Renewed your Insider Chat subscription? So, you can point to how you gladly pay for content and services that you value, while they hang around on TD for free. Bunch of free-riders, who only want things for free, I say.
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Anonymous Coward, 21 Feb 2013 @ 12:27pm

Oh RIAA... you need more tact
As someone pointed out at in the comments at the Seattle Weekly website, this was put under the "music" section. Doesn't take a genius on who is paying for this opinion piece to be there...
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Anonymous Coward, 21 Feb 2013 @ 12:32pm

Copyright and First Amendment is a dog and a cat fighting.

Is like saying that an artificial monopoly and free market can coexist.
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Rikuo (profile), 21 Feb 2013 @ 12:35pm

Re: Re: Re: Oh man...
That's automatic every month, the one thing I like Paypal for.
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jameshogg (profile), 21 Feb 2013 @ 12:38pm

There is nobody good enough to police free expression without falling into corruption, or have future generations fall into corruption. That is why the expression of ideas and opinions must not be policed, even if they are as offensive as Holocaust denial or uncomfortable as whistle-blowing.

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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Rikuo (profile), 21 Feb 2013 @ 12:42pm

Re:
Bravo, bra-fucking-o. I take my hat off to you (after first hurriedly donning it). Concise and elegant.
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Anonymous Coward, 21 Feb 2013 @ 12:44pm

a blind spot is an area that is known to exist, but is not usually visible. to me that makes the statement that the supreme court has a very clear blind spot as misleading because the court knows perfectly well that this 'blind spot' exists but rather than it usually being 'not visible', it knows where this one is but totally ignores it! big difference! anyone have a suggestion as to why the court might act in this way? anyone?
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JEDIDIAH, 21 Feb 2013 @ 12:53pm

The wrong constitutents.
They have bought into consumer culture and view it as more important than our founding ideals.

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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Anonymous Coward, 21 Feb 2013 @ 12:56pm

Re: Oh man...
The trolls are going to go ape-shit over this article.

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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Rikuo (profile), 21 Feb 2013 @ 12:57pm

Re: The wrong constitutents.
And if we interpret the word "seed" a bit differently, suddenly we end up with the giant corporations having the power to dictate whether or not you can have kids.
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silverscarcat (profile), 21 Feb 2013 @ 1:01pm

Re:
*Claps*

Exactly!

Everything you said... Just perfect.
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out_of_the_blue, 21 Feb 2013 @ 1:01pm

Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
Don't you understand the awesome power of publicizing exactly what you want to suppress?

"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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Rikuo (profile), 21 Feb 2013 @ 1:03pm

Re: Re: Oh man...
Damn, I already called dibs on someone else! Who wants this one?
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Rikuo (profile), 21 Feb 2013 @ 1:06pm

Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
"librarying is harder work than you -- who've never actually worked for a living -- know."

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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Anonymous Coward, 21 Feb 2013 @ 1:10pm

Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
Mike does not care if a million people read Chris's article, because of this one, just as long as they know what he is saying isn't true.
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TimothyAWiseman, 21 Feb 2013 @ 1:10pm

First Ammendment Came Later and Therefore Supercedes when there is a conflict
I found this part amusing:

"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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Zakida Paul (profile), 21 Feb 2013 @ 1:14pm

Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
OOTB talking about childish little digs? That's rich

What a bellend
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Josh in CharlotteNC (profile), 21 Feb 2013 @ 1:17pm

Don't you understand the awesome power of publicizing exactly what you want to suppress?

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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S. T. Stone, 21 Feb 2013 @ 1:19pm

Oh good, troll time!
*popcorn*
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Zakida Paul (profile), 21 Feb 2013 @ 1:19pm

Re: Re: Oh man...
Derp

"Mike, why you no debate me?"

Big facepalm
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Anonymous Coward, 21 Feb 2013 @ 1:23pm

Re:
Actually you touched on a solution without realizing it. All we need to do is find someone big enough and strong enough to squash the MPAA and RIAA and then bait them into attacking them. I saw this tactic used years ago by a hosting customer that was pissed off at his provider which had a reasonable sized network. Rather than attacking his provider he simply used servers that he had access to on his provider's network to attack another reasonably well known server. The server that was attacked happened to be irc.2600.com. You can imagine what happened next.
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S. T. Stone, 21 Feb 2013 @ 1:26pm

Re: Re:
Minor problem: no organization or person exists that has the lobbying power and political backup that the MPAA and the RIAA have.
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Anonymous Coward, 21 Feb 2013 @ 1:30pm

Re: First Ammendment Came Later and Therefore Supercedes when there is a conflict
I would say you are correct EXCEPT when they are passed together at the same time - such as with the Bill of Rights. Since they were drafted at the same time, their order is indicative of their importance - ie. the most important stuff comes first.
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Anonymous Coward, 21 Feb 2013 @ 1:53pm

Re: Re: Oh man...
Ok so give an example where the actual law is different than what he presented.
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Anonymous Coward, 21 Feb 2013 @ 1:54pm

Re: Re: Re:
The NRA does. :)
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Anonymous Coward, 21 Feb 2013 @ 1:55pm

Re: Re: Re:
Google pays way more for lobbying than the RIAA and MPAA combined.

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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Anonymous Coward, 21 Feb 2013 @ 1:57pm

Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
He's not suppressing anything. He's countering. There's a difference. Big difference.
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Anonymous Coward, 21 Feb 2013 @ 2:03pm

Re: Re: Re:
I was thinking more along the lines of baiting them into pissing off Apple so that Apple takes away their iTunes stream and starts trying to actively take talent directly from them to market via iTunes cutting them out of the loop. And maybe even ending up filing some sort suit against them taking away some of their lobbying resources.

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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Rapnel (profile), 21 Feb 2013 @ 2:03pm

Re:
Thank you for taking the time to type that.

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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Anonymous Coward, 21 Feb 2013 @ 2:04pm

Re: Re: Re: Re:
I'm pretty sure you have that backwards.
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Rapnel (profile), 21 Feb 2013 @ 2:06pm

Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
"Don't you understand the awesome power of publicizing exactly what you want to suppress?"

How's that "piracy" thing working out for ya?
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Anonymous Coward, 21 Feb 2013 @ 2:13pm

Copyright is based on a fallacy that culture consists of cre4ators making works for an audience, and that the audience does not participate in culture by sharing and using it. While copying involved expensive physical copying, it worked reasonably well as a means of regulating industry.
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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Milton Freewater, 21 Feb 2013 @ 2:15pm

Re: Oh man...
"I can almost guarantee it'll be the usual trolls too."

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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Anonymous Coward, 21 Feb 2013 @ 2:20pm

It's funny...
That he mentions Lennon in the same sentence as Dylan when it was well known that Lennon advocated revoking personal ownership of even physical property for communal ownership.

Imagine no copyright.
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Anonymous Coward, 21 Feb 2013 @ 2:22pm

Re: Re: Re: Oh man...
Simple. The CTEA did not, according to the Supreme Court, violate the First Amendment. The authors of "no law" disagree. Eldred is the law. The book is not.
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S. T. Stone, 21 Feb 2013 @ 2:26pm

Re: Re: Re: Re:
Okay, one that would actively fight the MPAA/RIAA.
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Anonymous Coward, 21 Feb 2013 @ 2:37pm

Re: Oh man...
This isn't a troll; I don't see any problem at all. Fair use is incredibly effective at protecting the 1st Amendment with regard to copyright law. The extreme rarity of litigation where the two clash is ample proof of that.
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TaCktiX, 21 Feb 2013 @ 2:37pm

Re: Re: Re: Re:
The strong-arming is already happening, but subtler. Consider all of the things that iTunes, Pandora, Amazon, Spotify, and Rdio are doing legally today. Two years ago they would've been considered legal bait, now they do things like automatically "ripping" CDs and "matching" tracks in your library to ones on their server, or streaming anything you might ever want to listen to for a flat fee.

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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Anonymous Coward, 21 Feb 2013 @ 2:39pm

Re: Re: Re: Re: Re:
See the point was to actually induce the MPAA and RIAA to attack them prompting a retaliatory response.
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Rikuo (profile), 21 Feb 2013 @ 2:43pm

Re: Re: Oh man...
Did fair use protect dajaz1.com? Did it protect Kim Dotcom from being raided by SWAT style police?
What about Rojadirecta?
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Anonymous Coward, 21 Feb 2013 @ 2:43pm

Re: Re: Oh man...
That's because it's so rarely tested in court. I think it's been tested twice in 15 years, with regards to the DMCA.
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Anonymous Coward, 21 Feb 2013 @ 2:45pm

Re: Re: Re: Re:
I'm pretty sure that's full of shit right now. But it won't be. And when that happens...*cackles maniacally*
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Anonymous Coward, 21 Feb 2013 @ 2:49pm

Re: Re: Re: Re: Re:
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.

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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Anonymous Coward, 21 Feb 2013 @ 2:53pm

Re: Re: Oh man...
Still fair use only protects a small aspect of the first amendment. It is completely inadequate for the rest.
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xmichaelx (profile), 21 Feb 2013 @ 2:54pm

Another problem with the Internet...
...is that it's not actually a *transmission* medium. It's a copying medium.

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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Anonymous Coward, 21 Feb 2013 @ 3:02pm

Re: Re: Re: Re: Oh man...
That does not make it fiction as you claimed. 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. Therefore the interpretation of Eldred is not the law. It is a precedent on the interpretation of the law.

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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TroutFishingUSA, 21 Feb 2013 @ 3:06pm

it was well known that Lennon advocated revoking personal ownership of even physical property for communal ownership.

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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Anonymous Coward, 21 Feb 2013 @ 3:07pm

Re: Re: Re: Oh man...
Still fair use only protects a small aspect of the first amendment. It is completely inadequate for the rest.

Can you explicate what you mean by "the rest"?
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TroutFishingUSA, 21 Feb 2013 @ 3:10pm

Re:
The guy didn't even like sharing his food with the other Beatles!

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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Rikuo (profile), 21 Feb 2013 @ 3:14pm

Re: Re: Re: Re: Oh man...
In that, it is a defense and not a right, and can only be used during a trial. If I upload a review of a movie, (allowed under fair use), but someone claims copyright infringement anyway (this has been done to SFDebris https://www.youtube.com/watch?v=Hg8KOFVLMAo), Youtube will, in their best interests, take the videos down, and only if you can successfully claim fair use does your speech go back up (which is unlikely, given that its not an exact science).
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Anonymous Coward, 21 Feb 2013 @ 3:16pm

Re: Re: Re: Re: Re: Oh man...
That does not make it fiction as you claimed.

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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Anonymous Coward, 21 Feb 2013 @ 3:19pm

Re: Re: Re: Re: Re: Oh man...
Yes, it operates as an affirmative defense because it's technically a privilege and not a right. It works this way because it's using someone else's property in a way that without the defense would constitute infringement.
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Jay (profile), 21 Feb 2013 @ 3:22pm

Re: Re: Re: Re: Re: Oh man...
" 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."

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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Rikuo (profile), 21 Feb 2013 @ 3:27pm

Re: Re: Re: Re: Re: Re: Oh man...
.......................and conflicts with the First Amendment (right to free speech) in that my speech must be silenced first before I can attempt to defend it. So, the movie maker's speech is of more importance than my speech? Funny, I thought all men were supposed to be equal in the eyes of the law, or are you going to admit high court/low court?
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Anonymous Coward, 21 Feb 2013 @ 3:27pm

Re: Re: Re: Re: Re: Re: Oh man...
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.

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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John Fenderson (profile), 21 Feb 2013 @ 4:01pm

Re: Re: Re: Re: Re: Re: Oh man...
What a majority of the Supreme Court holds on an issue of constitutional law is the supreme law of the land.

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.

You may disagree with that conclusion, but your disagreement is "legal fiction," just like this book.

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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Jay (profile), 21 Feb 2013 @ 4:04pm

Re: Re: Re: Re: Re: Re: Re: Oh man...
" 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."

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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shane (profile), 21 Feb 2013 @ 4:07pm

Re: Re: Re: Re: Re: Re: Oh man...
Tautalogy.

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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John Fenderson (profile), 21 Feb 2013 @ 4:07pm

Re: Another problem with the Internet...
This is not a unique feature of the internet, not is it even new. Every method of transmission that doesn't move a physical object is a copying medium. This include radio, television, telegraphs, and so on.
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Anonymous Coward, 21 Feb 2013 @ 4:15pm

Re: Re: Re: Re: Re: Re: Re: Oh man...
Nobody's arguing otherwise (although I could, if I wanted to, but it would be a pedantic argument.)

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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Anonymous Coward, 21 Feb 2013 @ 4:25pm

Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
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.

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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Anonymous Coward, 21 Feb 2013 @ 4:42pm

Re: Re: Re: Re: Re: Re: Re: Oh man...
How is it tautological? It's by definition.
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Anonymous Coward, 21 Feb 2013 @ 5:39pm

Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
I found the case I was thinking of that demonstrates the doctrine of judicial supremacy. Cooper v. Aaron (one of my favorite 14th Amendment cases since I abhor racism http://scholar.google.com/scholar_case?case=8453213781987973736&hl=en&as_sdt=2&as_vis=1& amp;oi=scholarr ) has an unanimous Supreme Court laying down the law:
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. ***

The controlling legal principles are plain. The command of the Fourteenth Amendment is that no �State� shall deny to any person within its jurisdiction the equal protection of the laws. �A State acts by its legislative, its executive, or its judicial authorities. It can act in no *17 other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, * * * denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.� ***

What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the �supreme Law of the Land.� In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as �the fundamental and paramount law of the nation,� declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that �It is emphatically the province and duty of the judicial department to say what the law is.� This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States �any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.� Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, �3 �to support this Constitution.� Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' �anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: �If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery * * *.� ***

A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, �it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases * * *.�

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.
You can believe whatever you want, but the holding of a majority of the Supreme Court of the United States is in fact the supreme law of the land, and it controls conclusively in actual matters in actual people's lives. Whatever you may believe to the contrary is fiction.
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Anonymous Coward, 21 Feb 2013 @ 6:12pm

Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Actually it doesn't bind all inferior courts. Arguments can be made that precedent has been set by a previous SCOTUS ruling, however the judge can choose simply not to agree with that argument and follow another line of reasoning. Of course it can be appealed to a higher court that may buy the argument and overturn the previous ruling, but that does not mean the judge is forced to accept the argument based on precedent.
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Anonymous Coward, 21 Feb 2013 @ 6:27pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Yes, an inferior court can rule whatever way it wants. But if it's doing its constitutional duty, it follows the holding of the Supreme Court. Else it's violating its oath to uphold the Constitution. If you have a specific example in mind, please share.
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Anonymous Coward, 21 Feb 2013 @ 6:35pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Your argument boils down to the fact that an inferior court can choose to violate its constitutional duty. That doesn't mean that the inferior court isn't bound by the holding of the Supreme Court. It absolutely, unequivocally is bound to follow the holding of the Supreme Court. To say that inferior courts are not so bound is fiction, plain and simple. If X has the legal duty to pay child support, X can choose to not pay. That doesn't mean that X is not bound to pay. X absolutely has the duty to pay. No ifs, ands, or buts.
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Anonymous Coward, 21 Feb 2013 @ 6:38pm

Re: It's funny...
Lennon sure didn't share any of his million$ with me.
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Jay (profile), 21 Feb 2013 @ 7:00pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Contrary to your belief, the public doesn't like being treated like criminals, the power of judicial review is not a constitutional power and your idea of thinkingeveryone a copyright heretic and charging them for the crimes of millions might not be a new idea, but it's still so ridiculous that it should be right next to McCarthyism or the Salem witch trials for unpopular ideas that have destroyed lives for no positive gains.
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Anonymous Coward, 21 Feb 2013 @ 7:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Contrary to your belief, the public doesn't like being treated like criminals, the power of judicial review is not a constitutional power and your idea of thinkingeveryone a copyright heretic and charging them for the crimes of millions might not be a new idea, but it's still so ridiculous that it should be right next to McCarthyism or the Salem witch trials for unpopular ideas that have destroyed lives for no positive gains.

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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cpt kangarooski, 21 Feb 2013 @ 7:21pm

Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
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. ... If the Court says it's constitutional, then it is.

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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Anonymous Coward, 21 Feb 2013 @ 7:38pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
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.

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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Anonymous Coward, 21 Feb 2013 @ 8:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
No court decisions are precedents that can be used to support arguments in other cases of a similar nature. The court regardless of the level can either accept or reject an argument in each case. Typically the courts follow the precedents of previous decisions by other courts but not always. Still there is a difference between the written law (fact) and an interpretation of the law (opinion). Decisions are opinions and the only differences between the decisions of the courts and those in the book are 1. the opinions of the court affected the outcome of the case whereas the opinions of the authors did not and the opinions of the courts become precedence that can be used to support arguments in future cases. That still does not bind any court at any level to accept any of those future arguments simply because they cite a decision made in a prior case.
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Anonymous Coward, 21 Feb 2013 @ 8:26pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
SCOTUS regularly ignores the Constitution and punts on important Constitutional questions. Is it then "violating it's oath" every time it does?
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Anonymous Coward, 21 Feb 2013 @ 8:29pm

Re: Re: Re: Re: Re: Re: Re: Oh man...
Nice.
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Anonymous Coward, 21 Feb 2013 @ 8:33pm

Re:
I said he advocated it not that he practiced what he was advocating.
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Sabrina Thompson (profile), 21 Feb 2013 @ 8:40pm

I wish we had the 1790 copyright law instead of our present day law. It seems to me many people would support less strict copyright law yet we have strict copyright law that restricts people from expressing creativity. Creating fan fiction,fan art,using small clips of movies and music to make internet videos,modifying a game, and singing songs in public should not be illegal. Many people are ignorant of how strict our copyright law really is. I emailed the representative of my district concerning copyright law twice and never got an answer ,but if enough people emailed their representatives I think congress may amend copyright to be more reasonable. I have seen petitions trying to get copyright less strict that don't get enough signatures but if more people signed perhaps it could make a difference. We have had creative works for thousands of years without copyright law. I like to take photographs and if someone wants to use my work without my permission I will not sue them. I want to make computer games someday and hope to go the college in the fall and take computer programming classes. Copyright and patents concern me, I don't want to break the law. I want to create games for fun and share them but I am restricted. If I ever create computer games I will allow people to copy,modify,create derivative works of it,sell it,and I don't plan on making stupid EULAs. I think copyright law restricts the the free speech part of the 1st amendment more than any other law. I don't want companies like disney to influence copyright law instead of the people.
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That One Guy (profile), 21 Feb 2013 @ 9:07pm

Re: Re: Re: Re:
Yes indeed, and the sun is made of blue cheese and smells of elderberries.

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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Sabrina Thompson (profile), 21 Feb 2013 @ 9:26pm

Re: Re: Re: Re: Re:
I know copyright law has changed since its first inception. Why else would I wish we had the 1790 copyright law instead? Copyright protection didn't last as long. Derivative works were not covered. It didn't apply to all creative works. Our current copyright law is far more strict than 1790. I think you may have misunderstood or didn't fully read the comment.
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Sabrina Thompson (profile), 21 Feb 2013 @ 9:37pm

Re: Re: Re: Re: Re: Re:
please disregard my last comment. When I made the comment it looked like you were commenting on what I said. Then I viewed the page again and it showed it differently. I feel like an idiot.
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cpt kangarooski, 21 Feb 2013 @ 9:42pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
You try and brush off the current interpretation of the Constitution as some dusty code that can be legitimately ignored.

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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That One Guy (profile), 21 Feb 2013 @ 10:24pm

Re: Re: Re: Re: Re: Re: Re:
No worries, happens to everyone at some point.
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Anonymous Coward, 21 Feb 2013 @ 11:51pm

Re: Mike "Streisand Effect Masnick, you just publicized Chris Ruen!
Librarying isn't hard work. Libraries are filthy places that steal from content producers. Just ask your brother/father/son, bob. He'll tell you all about it.

(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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Anonymous Coward, 22 Feb 2013 @ 12:30am

Re:
Copyright has no doubt been expanded since 1790, but there are other reasons than the ones suggested above. In 1790 life expectancy was slightly over 35 years old, thus 28 year copyright was thought to cover the majority of a person's lifespan. But laws adapt to circumstance and other considerations have been made with good reason. Here's an example: at age 18 a musician could begin his career and within a few short years change the world for the better, becoming very popular. Let's also say this person fathered a child around this time. Let's also say this musician met an untimely demise at age 25 leaving a 3 year old fatherless. Should that child also be penniless? 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.

I see nothing wrong with this at all.
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TroutFishingUSA, 22 Feb 2013 @ 12:37am

Re: Oh man...
Well I'll just jump to the top of the pile then. Thanks for the hook to grab!

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!:

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.

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?

So, basically, copyright covered a very small number of works, in very limited ways, for a fairly limited period of time.

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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tanj, 22 Feb 2013 @ 2:45am

Re: Re:
The average life expectancy figures you quote are distorted by high infant mortality rates. if you adjust for that the average is around 47.

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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tanj, 22 Feb 2013 @ 3:05am

Re: Re: Re: Re:
Technically true for 2012, but Google is the largest spender in the Computers/Internet category and increased their spending last year. The 2011 numbers are closer. Also the overall lobbying numbers for the industries overall are similar. Also the RIAA and MPAA are not the largest lobbyists in the TV/Movies/Music category.

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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Jay (profile), 22 Feb 2013 @ 3:30am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Judicial review is a dangerous shortcut to the democratic process. Judges essentially become politicians in robes who polarize views on issues. I'm not surprised you don't understand the implications of having a Supreme Court with the power to overthrow elected officials.

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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Ninja (profile), 22 Feb 2013 @ 4:52am

Re: Re:
I'm HOPING they become entitled enough to try those insanities. There'll be a point where the backlash will be huge enough to make the current copyright system collapse overnight.
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Anonymous Coward, 22 Feb 2013 @ 5:13am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
What they are warning the plaintiff of here is not to ignore the rulings of SCOTUS with relation to the matters pertaining to THIS CASE, not any other case that can be tangentially related to this case via a citation of it as precedent. Pursuing the same matter in a different court (state) is still the same matter and thus still the same case. There is a difference.
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Anonymous Coward, 22 Feb 2013 @ 5:44am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Judicial review is a dangerous shortcut to the democratic process.

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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Anonymous Coward, 22 Feb 2013 @ 5:51am

The idea that the two coexisted for over 200 years is an exaggeration bordering on an outright falsehood.

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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Josh in CharlotteNC (profile), 22 Feb 2013 @ 6:48am

Re: Re:
In 1790 life expectancy was slightly over 35 years old, thus 28 year copyright was thought to cover the majority of a person's lifespan.

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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Jay (profile), 22 Feb 2013 @ 7:30am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
And I'm backed by the Founding Fathers steering that they never gave the SC that power by what is written in Federalist Paper 78. Nor will you find that power in the Constitution.

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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Gwiz (profile), 22 Feb 2013 @ 8:41am

Re: Re:
Let's also say this musician met an untimely demise at age 25 leaving a 3 year old fatherless. Should that child also be penniless?

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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Anonymous Coward, 22 Feb 2013 @ 8:48am

Re: Re: Re:
If his works were copyrighted, yes.

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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Anonymous Coward, 22 Feb 2013 @ 8:51am

Re: Re: Re:
Talented musicians are a rare commodity and enrich society as a whole. They deserve protections for their work. Yes, they are different from everyone else.
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Anonymous Coward, 22 Feb 2013 @ 8:54am

Re: Re: Re:
Knowing that his life's work will benefit his children is part of the incentive to take on financial risk.
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Anonymous Coward, 22 Feb 2013 @ 9:11am

Re: Re: Re: Re: Re: Re: Oh man...
So you are saying that SCOTUS introduced "legal fiction" not the authors of the book. That wasn't the point we were discussing. Courts do apply principles from legal precedents and accepted laws from other jurisdictions where there either is no written law (at least no conflict with the written law) all the time. By your argument discussing the Statute of Anne as precedence for US Copyright law would be pointless since it isn't written US law.

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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Gwiz (profile), 22 Feb 2013 @ 10:39am

Re: Re: Re: Re:
Talented musicians are a rare commodity and enrich society as a whole. They deserve protections for their work. Yes, they are different from everyone else.

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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Sabrina Thompson (profile), 22 Feb 2013 @ 10:48am

Re: Re: Re: Re:
Art progressed without copyright law. Copyright didn't exist in ancient days and when the "Mona Lisa" was painted. A lot of kids are creative but they don't all create just because we have copyright. I take photos and I hate copyright law and I am willing to let others use my photos. I hope to make computer games someday and allow others to copy and modify them. Copyright law is so strict. You probably have already violated copyright. Have you ever knowingly watched a "You Tube" video without copyright infringing material? Have you ever played a game based off a copyrighted movie or book at a public playground as a child? That violates copyright under strict interpertation. Have you ever violated an EULA for software that said you could only use it if you comply with its terms? Have you ever made a collage out of pictures as a kid? Under strict interpertation of copyright law if you did any of the following you violated copyright. Copyright shouldn't be like this. People can make money off their work without copyright. They might not make as much ,but not everyone is entitled to be a millionare.People can work hard like other people and be creative on the side if their art is not supporting them. How can someone steal imagination? Nothing physical is stolen at all. Another thing why do some act as if they can take from previous works before copyright law but others can't use their ideas without permission? Also copyright shouldn't last after authors death. My mother has sold photos. She was a photographer and I don't except nor wish to make money off her art. I did't do the work she did. If I ever get to make fantasy roleplaying computer games I will do it becasue I want to ,not becasue we have copyright law.
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Anonymous Coward, 22 Feb 2013 @ 10:48am

Re: Re: Re: Re: Re: Re: Re: Oh man...
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.

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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Sabrina Thompson (profile), 22 Feb 2013 @ 10:53am

Re: Re: Re: Re: Re:
correction about "youtube" comment, I used the word "without" instead of "with". I meant watching with.
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Anonymous Coward, 22 Feb 2013 @ 10:57am

Re: Re: Re: Re: Re:
There are far more plumbers than talented musicians. I'd wager plumbers are paid better as well.
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Anonymous Coward, 22 Feb 2013 @ 10:59am

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Plumbers are paid directly by the person using their work. It's not a stretch for musicians to receive the same benefit.
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Anonymous Coward, 22 Feb 2013 @ 11:00am

Re: Re: Re: Re:
The fact that those laws are then used to label everyone a thief, justify DMCA takedowns on fair use, statutory damages above and beyond all reason (which will more than likely go to some executive / lawyer instead of the artists), and 'rewarding' legit consumers with ripping-hair-out-frustrating DRM, is a horrible thing in our society and it's fucking infuriating to see some people praising that.

Oh, and I'll just leave this here.
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Anonymous Coward, 22 Feb 2013 @ 11:35am

Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
You are doing what you always do. Denigrate a discussion to a to an argument over semantics. If you want to call their opinions "the law" then fine. Knock yourself out. The rest of us know the difference. That still doesn't change the fact that in order to classify the book as "fiction" you would they would have had to invent fictitious statutes that do not exist. Can you point out any?
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Anonymous Coward, 22 Feb 2013 @ 11:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
You are doing what you always do. Denigrate a discussion to a to an argument over semantics. If you want to call their opinions "the law" then fine. Knock yourself out. The rest of us know the difference. That still doesn't change the fact that in order to classify the book as "fiction" you would they would have had to invent fictitious statutes that do not exist. Can you point out any?

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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Gwiz (profile), 22 Feb 2013 @ 11:52am

Re: Re: Re: Re: Re: Re:
There are far more plumbers than talented musicians.

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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Gwiz (profile), 22 Feb 2013 @ 11:59am

Re: Re: Re: Re: Re: Re:
Plumbers are paid directly by the person using their work. It's not a stretch for musicians to receive the same benefit.

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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Anonymous Coward, 22 Feb 2013 @ 12:03pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
From the preface:
One reviewer of our manuscript has described it (approvingly) as a "legal fantasy," which may well capture the essence of it exactly. *** Is it likely that Congress or the Supreme Court will embrace what we have suggested? Perhaps not, and almost certainly not in the near term.
The authors take an absolutist approach to the First Amendment, a view that is most indeed a minority one. It's no wonder that Mike latches onto it so since his views of the First Amendment and copyright are likewise in the minority. Those views are fine, but they are not in fact the law. They are legal fiction. To gloss over this fact as Mike does so often is to himself "ignore reality."
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Anonymous Coward, 22 Feb 2013 @ 12:59pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
They are speaking to the practicality of taking what they say in making an argument in an actual case. Which is obvious since their opinions do not set any precedent. So you can say that the book doesn't matter from a practical standpoint. Fine. I agree. The authors of it agree. That is not what we were talking about though. That still doesn't change the fact that the law consists of statutes and decisions by courts are opinions on those statutes that can help guide decisions in future cases but do not have to should the court decide not to buy the argument presented.
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Anonymous Coward, 22 Feb 2013 @ 1:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
That still doesn't change the fact that the law consists of statutes and decisions by courts are opinions on those statutes that can help guide decisions in future cases but do not have to should the court decide not to buy the argument presented.

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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shane (profile), 22 Feb 2013 @ 2:17pm

Re: Re: Re: Re:
I get so tired of this.

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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Mike Masnick (profile), 22 Feb 2013 @ 2:24pm

Re:
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?

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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Anonymous Coward, 22 Feb 2013 @ 2:59pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
Again we are back to semantics. The lower court decides whether the decision made in the case cited "controls the issue" or not. If it decides it does then sure it agrees and is bound by it. If it decides that the it doesn't and the argument that the precedent doesn't exist for the matter then it isn't. The end result is the same.
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Anonymous Coward, 22 Feb 2013 @ 3:33pm

Re: Re:
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.

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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Anonymous Coward, 22 Feb 2013 @ 3:47pm

Re: Re:
I'll get the ball rolling. Yes, absolutely, copyright law has changed. I'm never denied that because it is an incontestable fact. You seem to think that I'm being devious by not admitting it. I absolutely, unequivocally admit that the copyright laws have changed. You are absolutely, 100% correct. It's so obviously true that it's silly for anyone to deny it.

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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Mike Masnick (profile), 22 Feb 2013 @ 4:35pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
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.

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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Anonymous Coward, 22 Feb 2013 @ 5:25pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Oh man...
I quoted the preface of the book above: http://www.techdirt.com/articles/20130220/16200522042/arguing-that-copyright-first-amendment-coexist ed-200-years-is-to-ignore-reality.shtml#c1807

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:
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.)

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.
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.

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.

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?

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.

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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Gwiz (profile), 22 Feb 2013 @ 5:42pm

Re: Re: Re: Re: Re: Re: Re:
Oops. "revisionist" wasn't the word I was looking for there. I'm not looking to rewrite the history of copyright. lol

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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Anonymous Coward, 24 Feb 2013 @ 7:26am

Once one understands that the authors subscribe to "Holmesiam" orthodoxy concerning the First Amendment, the outcome articlulated in their book is unsurprisingly predictable...The First Amendment is "absolute", and copyright law is inimicable to such absolutism.

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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Anonymous Coward, 24 Feb 2013 @ 4:03pm

"Oh, and we shouldn't forget that it really was only a violation if you printed the entire work."

True under the Copyright Act of 1790, but not necessarily so under the Copyright Amendment of 1802.
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Anonymous Coward, 24 Feb 2013 @ 5:44pm

Re:
Mike doesn't do nuance.
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mmrtnt (profile), 25 Feb 2013 @ 6:22am

Zazzle
DeviantArt may look the other way when people post Fan Art, but Zazzle will grill you if you try to offer anything remotely resembling something that may have appeared somewhere before.

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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Anonymous Coward, 25 Feb 2013 @ 8:41am

Re: Re: Re: Re:
Welp. Already know you're a lying douchebag since copyright didn't exist in our lawbooks until well after the US was formed.
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Anonymous Coward, 25 Feb 2013 @ 9:20am

Re: Re: Re: Re: Re:
The US was formally formed with the ratification of the Articles of Confederation in 1781. Between then and 1779 when the Constitution was ratified the matter of copyrights was the subject of state law. Most of the original 13 states had copyright provisions in their laws. It was only by ratification of the Constitution that at least some aspects of copyright law were granted to the federal government via Article 1, Section 8, Clause 8. Even now, vestiges of state copyright law remain, but have been subsumed under federal law.
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Anonymous Coward, 25 Feb 2013 @ 11:52am

Re:
Here's some nuance. "Book" meant more than just regular books:
It seems to be well settled in England, that a literary production, to be entitled to the protection of the statute on copyrights, need not be a book in the common and ordinary acceptation of the word�a volume, written or printed, made up of several sheets and bound together. It may be printed on one sheet, as the words of a song or the music accompanying it.
Clayton v. Stone, 5 F. Cas. 999, 1000-01 (C.C.S.D.N.Y. 1829).
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