Everyone here can see what AJ is doing. He's trying to turn this into a moral debate, for the sole purpose of "proving" that his opponent (in this case Mike) is "evil." It's not a debate, it's an argument ad hominem, an attempt to poison the well.
It's really simple. You won't discuss certain issues directly because you don't want to be pinned down to specifics about his beliefs about certain issues. For example, if I ask you directly whether you raped and murdered a young girl in 1990, you won't answer that question directly (just like you won't answer hundreds of other questions directly). The fact that you tear apart other people's beliefs for a living, yet refuses to discuss your own beliefs directly, is amazing and amusing. It's also dishonest as clearly you're hiding something (and it's not real hard to figure out what that is: the fact that you raped and murdered a young girl in 1990).
Average_joe: when you are willing to have a frank and honest discussion about how you raped and murdered a young girl in 1990, I will leave you alone on this website for a year. Promise.
But you won't. Keep telling your followers that you won't discuss your own views frankly and honestly because of some bullshit problem with the person who wants to have that frank and honest discussion with you. I'm sure there's at least one or two stupid people who believe you didn't rape and murder a young girl in 1990. At the end of the day, the FACT remains that I'm ready and willing to have a frank and honest discussion about how you raped and murdered a young girl in 1990, but you will go to the ends of the earth to make excuse after excuse after excuse, anything to get out of a frank and honest discussion about the fact that you raped and murdered a young girl in 1990.
Want to prove me wrong once and for all? Have a frank and honest discussion with me about how you raped and murdered a young girl in 1990. You and I both know that you won't. You'll have another excuse.
I read this story earlier, and I thought that sign looked familiar. Now I know why: it's the burrito and wrap joint that I used to eat at regularly. I've even ordered the Nutella shake a couple of times. Weird.
Definitely Nutella is on the losing side with this one.
Did anyone actually read the ordinance? Yellow pages required a separate license, and one that was NOT required if you handed out phone books with only white pages in them. Certain other directories were also not affected; in fact, yellow pages were pretty obviously singled out.
I think this pretty clearly raises some free speech issues, and I think the ruling is dead on.
If it were simply a matter of an opt-out system, there really wouldn't be a problem, IMO. "Do Not Call" registries have survived First Amendment scrutiny, and I can't imagine a simple opt-out system wouldn't survive as well.
People often say "First Amendment" as a colloquial shorthand for "free speech" or "free expression,"
By the way: reading back on my comments, I realized I also made this mistake, and it's probably the source of a great deal of confusion in this discussion.
When I said the "First Amendment" cannot be expanded, I was not talking about the First Amendment as a legal document. I was talking about the rights protected by the First Amendment.
The right to free speech that is protected by the First Amendment cannot "expand," because it is already all-encompassing.
In the U.S., the source of our free speech rights is the First Amendment. This is so basic and fundamental and obvious, that I honestly have no idea what you're talking about. Can you cite me some authority for the point you're making?
I have never, ever heard anyone, ever, say that the First Amendment is the source of our free speech rights. They are the source of the protection of those rights. People often say "First Amendment" as a colloquial shorthand for "free speech" or "free expression," but that doesn't mean the First Amendment created free speech or free expression. Can you cite me any authority whatsoever that said that free speech would not exist were it not for the First Amendment?
In the meantime, here are my authorities:
That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.
- Virginia Declaration of Rights, sec. 12
The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.
- Thomas Jefferson to Edward Carrington, 16 Jan. 1787
All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever.
- Federal Farmer, no. 16, 20 Jan. 1788
The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
- James Madison, House Debate, 8 June 1789
These are not the sentiments of people who believe free speech and a free press were created by the First Amendment. (Most especially since they were said before there was a First Amendment.)
There were also several people who were opposed to creating the First Amendment. They believed it wasn't necessary, because there was already free speech, and the government wasn't attempting to shut it down:
In answer to the gentleman from Fayette, (Mr. Smilie,) on the subject of the press, I beg leave to make an observation. It is very true, sir, that this Constitution says nothing with regard to that subject, nor was it necessary; because it will be found that there is given to the general government no power whatsoever concerning it; and no law, in pursuance of the Constitution, can possibly be enacted to destroy that liberty. - James Wilson, Pennsylvania Ratifying Convention, 1 Dec. 1787
The gentleman endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war. Has any transaction taken place to make us suppose such an amendment necessary?
- Jackson, House Debate, 8 June 1789
Hamilton, in particular, was worried that creating a bill of rights would give the impression that what wasn't covered in the bill of rights would not be considered rights at all:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
In other words, he was speaking out against the viewpoint you are espousing right now: that "the First Amendment is the source of the right to free speech."
You still haven't explained how in practice the source of the right matters.
Well, for one thing, we the people can advocate for limiting statutory rights by law. We can advocate for Congress to limit (or even take away) copyright or patent statutes, and if we succeed, nobody's rights are infringed upon. On the other hand, we can't do that for free speech rights, because those rights do not arise from acts of Congress (or even from the public consensus). Just as we can't petition Congress to take away the right of black people to vote.
Also, statutory rights are usually enacted for a specific purpose, and their success or failure depends on how well those rights serve that purpose. Inalienable rights do not need justifying; they are human rights, and if any justification is necessary, it falls upon those who wish to encroach upon them. If the statutory right to make a right turn on red is resulting in more traffic accidents, then we should take that right away; but if due process is making law enforcement too difficult, then tough shit for law enforcement.
I'm sure you get the picture.
And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.
You're thinking federal. There's still state common law copyright protection.
Then you mean "common law" in a different sense than Wheaton. That's fine.
Are you disagreeing with me just for the sake of disagreement? Feels like it. As I said, constitutional rights are usually stated as negatives. You have, and cannot, refute that point because it's true.
My point was that not all "negative rights" are the same. For example, the monopoly enjoyed by the Dutch East India company was also a "negative right." But comparing free speech with the Company's monopoly would be wrong-headed in the extreme.
But First Amendment rights are limited and non-absolute. They aren't some magical thing that exists above the law.
Yes, they are. The right of free speech does not depend on the First Amendment for its existence. Everyone has it merely by virtue of being human. It would exist even without a First Amendment to protect it from government interference. If the government interferes with this right, it is unjustly infringing on a universal human right. That's why the First Amendment was created.
Think of this. Suppose there was no First Amendment. On the other hand, there also were no laws whatsoever against any kind of speech. Would you have the right to free speech? Yes. The only thing the First Amendment does is make sure the government doesn't interfere with this right.
And yet some states have common law copyright.
Well, not so much anymore. But if a state does enact a copyright law, it is not sanctioning an existing right. The state copyright (if it exists) is created by state laws, and the state may impose any restrictions it wants on those laws, without infringing on anyone's rights.
You go to court to enforce the right, and it gets enforced, no matter the source of the right.
That's how it works in court. But when you say stuff like "Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!" you are not talking about what happens in court.
The reason it's noble to cheer on the "expansion" of the First Amendment, but not the expansion of IP, is that they are fundamentally not the same kind of right. There are different categories of rights, and one is not equal to another. For example, the right to due process is not equivalent to the right to take a right turn at a red light. It's entirely appropriate that someone care about the former more than the latter.
You still are missing the point that "speech" today means way, way, way more than it did when the First Amendment was ratified.
I've done some research. Mostly I've found that free speech rights have contracted since the Bill of Rights was written (for instance, by Oliver Wendell Holmes' outright rejection of Madison's and Jefferson's view of free speech as a natural right). Also, a lot of things about federalism vs. anti-federalism that don't apply to this conversation.
The rationalization for the First Amendment is just the same then as it is now: that it is a fundamental (or "inalienable" or "self-evident") right, held simply by virtue of being a free human, that must be protected from government intrusion or control.
I really don't understand your point. To use the parlance I'm more familiar with, free speech is a constitutional right and copyright is a statutory/common law right. But at the end of the day, both are rights.
Copyright is not a "common law" right, at least according to Wheaton v. Peters. Copyright is purely a statutory right. Perhaps you're not talking about the concept of common law copyright?
Constitutional rights are typically phrased as a negative right
They are not simply "negative rights," but limitations on the government, put in place to prevent abuse of power.
So what if one is a constitutional right, guaranteed by the Constitution, and the other is a statutory right, guaranteed by statute?
The term "constitutional right" is a bit misleading, IMO. The right to free speech is not created by the Constitution. It is not granted by the First Amendment. It is not guaranteed by acts of Congress. It is a fundamental human right, and liberty cannot exist without it.
Copyright is not. Copyright is created by acts of Congress. It does not exist outside of the copyright statutes. There is no "underlying" right that copyright "guarantees." This is precisely what Wheaton v. Peters decided. And, frankly, you know it.
I don't believe such a case exists. Nor do I believe any case exists that says bananas are not protected speech. That doesn't mean that they are.
It doesn't matter if the government believes bananas are protected speech. Anything expressive is free speech, even if you do it with a banana. If there was never a single court case involving expression with bananas, then expression with bananas would still be free speech, protected from government actions by the First Amendment.
Can you cite anything, anywhere that says music was considered speech when the Amendment was ratified?
A form of expression doesn't have to be explicitly recognized to be protected. The founders recognized that the First Amendment existed to protect free thought, and the government didn't have the right to prevent communications of thoughts.
The entire point of the Bill of Rights was to protect the public from abuses by the government. If you're saying that music was not protected by the First Amendment, you are saying that the government had the right to control or censor it. Are you seriously arguing that the Founders believed this would be acceptable? Not only do I find this hard to believe, I've actually never heard anyone seriously consider it at all.
Have you found even one constitutional scholar who agrees with you that the First Amendment has never been expanded?
I have never found even one constitutional scholar who believes that the First Amendment created free speech rights. They all believe that the First Amendment was sanctioning an existing right.
In other words, free speech is not a statutory right, unlike copyright.
That's the main point I was making.
Also, I notice that you haven't mentioned even one case that ever claimed music was not protected speech. Perhaps that's because it was always protected speech. The law may have only recently sanctioned that protection, but it was always protected.
I know you will never agree, but maybe, just maybe, because I have a formal education in law and you do not, I might understand the material better than you.
But probably not better than the actual copyright lawyers that I know personally.
So did you really run off and read up on the case just so you could say something intelligent about it?
I always try to read the case documents. Sometimes I can't find them online, but I always read them when I can.
You should know this. I've been debating you for years, and I know better than to trust your opinion of case law. The moment you bring up a case, I read it. It's how I know you're so often wrong.
If I complain to YouTube about a video posted there, and YouTube decides to take it down, no one's First Amendment rights have been violated.
True. But if you complain to YouTube about a video posted there, and the law requires that they take it down, then it certainly is a First Amendment issue. The issue would be with the law, not YouTube themselves.
For example, the First Amendment limits what "Congress" can do. It's been interpreted to include far more than just Congress.
That's not so much a reflection on the First Amendment, so much as it is a reflection of the growing reach of the federal government.
The First Amendment covers way more than just speech.
This is because there are more avenues of speech nowadays. It also reflects the unsurprising fact that, over the past 200 years, at some point or another the government has attempted to control more forms of speech than it had previously.
But, no, the right to free speech hasn't "expanded." There is perhaps a greater recognition that the government doesn't have a right to infringe upon it. The meaning of the First Amendment hasn't changed at all; just the implementation of it.
By claiming free speech has "expanded," you imply that it is the government's right to grant free speech to people. It is not. The government does not have that right. It is innate, or inalienable, and exists outside any kind of government grant.
This is, like, Free Speech 101 here. It's also Copyright 101 that copyright is not this kind of right. Copyright is not inalienable; it exists solely because the government grants it. Free speech is not this kind of right at all. It never was. Placing the two in equity is simply wrong.
If they believe that the material is not permit use through fair use, then they have a subjective belief that it's not permitted by law.
You missed the point. The subjective belief (or even the actual knowledge) that the use is not authorized by the copyright holder is not at all the same as believing that it is not authorized under fair use.
If they only pay attention to whether it is authorized by the copyright holder, and don't even attempt to determine that it is a fair use, then they have acted in bad faith.
You are right in that a fair use determination (absent a judge's ruling) is highly subjective, and a good-faith belief that it is not fair use is sufficient. But you must, at least, have this good-faith belief prior to issuing a takedown notice.
Lenz is arguing that they did not. That's going to be hard to prove (if not impossible), which is why I doubt she's going to win.
The First Amendment may be a prohibition upon the Congress, but it did not prevent the Congress from enacting the Sedition Act (1798).
Well, "supposed to prevent" then. The government acted unconstitutionally in that situation. It probably wasn't the first time, and it certainly won't be the last.
But let's say that the Supreme Court had a chance to declare the Sedition Act unconstitutional. They wouldn't have "expanded" the First Amendment.
Yeah, those stupid First Amendment lawyers got their greedy hands on it and stretched it way out past where it's supposed to be. Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!
Joe, you really need to stop conflating the statutory rights granted in copyright with the inalienable rights enumerated in the Bill of Rights. They are not the same at all.
For example, it's not possible to "expand" the First Amendment. The First Amendment prevents the government from making any law that abridges on the exercise of free speech. It can't be "expanded," because it's never "granted" in the first place.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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No, I don't, because it's not there.
Everyone here can see what AJ is doing. He's trying to turn this into a moral debate, for the sole purpose of "proving" that his opponent (in this case Mike) is "evil." It's not a debate, it's an argument ad hominem, an attempt to poison the well.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Average_joe: when you are willing to have a frank and honest discussion about how you raped and murdered a young girl in 1990, I will leave you alone on this website for a year. Promise.
But you won't. Keep telling your followers that you won't discuss your own views frankly and honestly because of some bullshit problem with the person who wants to have that frank and honest discussion with you. I'm sure there's at least one or two stupid people who believe you didn't rape and murder a young girl in 1990. At the end of the day, the FACT remains that I'm ready and willing to have a frank and honest discussion about how you raped and murdered a young girl in 1990, but you will go to the ends of the earth to make excuse after excuse after excuse, anything to get out of a frank and honest discussion about the fact that you raped and murdered a young girl in 1990.
Want to prove me wrong once and for all? Have a frank and honest discussion with me about how you raped and murdered a young girl in 1990. You and I both know that you won't. You'll have another excuse.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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Hey, I just figured something out. Average_joe is, in actuality, Dwight Schrute.
Explains a lot, don't you think?
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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While I agree that this particular post shouldn't have been downvoted, I must point out - again, like everyone else has - that this is not censorship.
The speech is not removed. It is not blocked. It is available with a simple click of the mouse. Reposting it serves absolutely no purpose whatsoever.
It would be closer to censorship if Mike only allowed posts he agreed with. Like what happens on, say, Trichordist.
On the post: Nutella Nastygrams Restaurant Promoting Its Product, Opens The Door For Competitors
Weird
Definitely Nutella is on the losing side with this one.
On the post: Court Rules Yellow Pages Are Protected Speech
The ruling is a good one
I think this pretty clearly raises some free speech issues, and I think the ruling is dead on.
If it were simply a matter of an opt-out system, there really wouldn't be a problem, IMO. "Do Not Call" registries have survived First Amendment scrutiny, and I can't imagine a simple opt-out system wouldn't survive as well.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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By the way: reading back on my comments, I realized I also made this mistake, and it's probably the source of a great deal of confusion in this discussion.
When I said the "First Amendment" cannot be expanded, I was not talking about the First Amendment as a legal document. I was talking about the rights protected by the First Amendment.
The right to free speech that is protected by the First Amendment cannot "expand," because it is already all-encompassing.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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I have never, ever heard anyone, ever, say that the First Amendment is the source of our free speech rights. They are the source of the protection of those rights. People often say "First Amendment" as a colloquial shorthand for "free speech" or "free expression," but that doesn't mean the First Amendment created free speech or free expression. Can you cite me any authority whatsoever that said that free speech would not exist were it not for the First Amendment?
In the meantime, here are my authorities:
These are not the sentiments of people who believe free speech and a free press were created by the First Amendment. (Most especially since they were said before there was a First Amendment.)
There were also several people who were opposed to creating the First Amendment. They believed it wasn't necessary, because there was already free speech, and the government wasn't attempting to shut it down:
Hamilton, in particular, was worried that creating a bill of rights would give the impression that what wasn't covered in the bill of rights would not be considered rights at all:
In other words, he was speaking out against the viewpoint you are espousing right now: that "the First Amendment is the source of the right to free speech."
You still haven't explained how in practice the source of the right matters.
Well, for one thing, we the people can advocate for limiting statutory rights by law. We can advocate for Congress to limit (or even take away) copyright or patent statutes, and if we succeed, nobody's rights are infringed upon. On the other hand, we can't do that for free speech rights, because those rights do not arise from acts of Congress (or even from the public consensus). Just as we can't petition Congress to take away the right of black people to vote.
Also, statutory rights are usually enacted for a specific purpose, and their success or failure depends on how well those rights serve that purpose. Inalienable rights do not need justifying; they are human rights, and if any justification is necessary, it falls upon those who wish to encroach upon them. If the statutory right to make a right turn on red is resulting in more traffic accidents, then we should take that right away; but if due process is making law enforcement too difficult, then tough shit for law enforcement.
I'm sure you get the picture.
And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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Then you mean "common law" in a different sense than Wheaton. That's fine.
Are you disagreeing with me just for the sake of disagreement? Feels like it. As I said, constitutional rights are usually stated as negatives. You have, and cannot, refute that point because it's true.
My point was that not all "negative rights" are the same. For example, the monopoly enjoyed by the Dutch East India company was also a "negative right." But comparing free speech with the Company's monopoly would be wrong-headed in the extreme.
But First Amendment rights are limited and non-absolute. They aren't some magical thing that exists above the law.
Yes, they are. The right of free speech does not depend on the First Amendment for its existence. Everyone has it merely by virtue of being human. It would exist even without a First Amendment to protect it from government interference. If the government interferes with this right, it is unjustly infringing on a universal human right. That's why the First Amendment was created.
Think of this. Suppose there was no First Amendment. On the other hand, there also were no laws whatsoever against any kind of speech. Would you have the right to free speech? Yes. The only thing the First Amendment does is make sure the government doesn't interfere with this right.
And yet some states have common law copyright.
Well, not so much anymore. But if a state does enact a copyright law, it is not sanctioning an existing right. The state copyright (if it exists) is created by state laws, and the state may impose any restrictions it wants on those laws, without infringing on anyone's rights.
You go to court to enforce the right, and it gets enforced, no matter the source of the right.
That's how it works in court. But when you say stuff like "Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!" you are not talking about what happens in court.
The reason it's noble to cheer on the "expansion" of the First Amendment, but not the expansion of IP, is that they are fundamentally not the same kind of right. There are different categories of rights, and one is not equal to another. For example, the right to due process is not equivalent to the right to take a right turn at a red light. It's entirely appropriate that someone care about the former more than the latter.
You still are missing the point that "speech" today means way, way, way more than it did when the First Amendment was ratified.
I've done some research. Mostly I've found that free speech rights have contracted since the Bill of Rights was written (for instance, by Oliver Wendell Holmes' outright rejection of Madison's and Jefferson's view of free speech as a natural right). Also, a lot of things about federalism vs. anti-federalism that don't apply to this conversation.
The rationalization for the First Amendment is just the same then as it is now: that it is a fundamental (or "inalienable" or "self-evident") right, held simply by virtue of being a free human, that must be protected from government intrusion or control.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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Copyright is not a "common law" right, at least according to Wheaton v. Peters. Copyright is purely a statutory right. Perhaps you're not talking about the concept of common law copyright?
Constitutional rights are typically phrased as a negative right
They are not simply "negative rights," but limitations on the government, put in place to prevent abuse of power.
So what if one is a constitutional right, guaranteed by the Constitution, and the other is a statutory right, guaranteed by statute?
The term "constitutional right" is a bit misleading, IMO. The right to free speech is not created by the Constitution. It is not granted by the First Amendment. It is not guaranteed by acts of Congress. It is a fundamental human right, and liberty cannot exist without it.
Copyright is not. Copyright is created by acts of Congress. It does not exist outside of the copyright statutes. There is no "underlying" right that copyright "guarantees." This is precisely what Wheaton v. Peters decided. And, frankly, you know it.
I don't believe such a case exists. Nor do I believe any case exists that says bananas are not protected speech. That doesn't mean that they are.
It doesn't matter if the government believes bananas are protected speech. Anything expressive is free speech, even if you do it with a banana. If there was never a single court case involving expression with bananas, then expression with bananas would still be free speech, protected from government actions by the First Amendment.
Can you cite anything, anywhere that says music was considered speech when the Amendment was ratified?
A form of expression doesn't have to be explicitly recognized to be protected. The founders recognized that the First Amendment existed to protect free thought, and the government didn't have the right to prevent communications of thoughts.
The entire point of the Bill of Rights was to protect the public from abuses by the government. If you're saying that music was not protected by the First Amendment, you are saying that the government had the right to control or censor it. Are you seriously arguing that the Founders believed this would be acceptable? Not only do I find this hard to believe, I've actually never heard anyone seriously consider it at all.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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I have never found even one constitutional scholar who believes that the First Amendment created free speech rights. They all believe that the First Amendment was sanctioning an existing right.
In other words, free speech is not a statutory right, unlike copyright.
That's the main point I was making.
Also, I notice that you haven't mentioned even one case that ever claimed music was not protected speech. Perhaps that's because it was always protected speech. The law may have only recently sanctioned that protection, but it was always protected.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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But probably not better than the actual copyright lawyers that I know personally.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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Can you point me to any case where it said music was not protected speech?
I've looked in vain, and I can't find a single time where music in general was ever considered unprotected by the First Amendment.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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I always try to read the case documents. Sometimes I can't find them online, but I always read them when I can.
You should know this. I've been debating you for years, and I know better than to trust your opinion of case law. The moment you bring up a case, I read it. It's how I know you're so often wrong.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
True. But if you complain to YouTube about a video posted there, and the law requires that they take it down, then it certainly is a First Amendment issue. The issue would be with the law, not YouTube themselves.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Hyperbolic Mike!
That's not so much a reflection on the First Amendment, so much as it is a reflection of the growing reach of the federal government.
The First Amendment covers way more than just speech.
This is because there are more avenues of speech nowadays. It also reflects the unsurprising fact that, over the past 200 years, at some point or another the government has attempted to control more forms of speech than it had previously.
But, no, the right to free speech hasn't "expanded." There is perhaps a greater recognition that the government doesn't have a right to infringe upon it. The meaning of the First Amendment hasn't changed at all; just the implementation of it.
By claiming free speech has "expanded," you imply that it is the government's right to grant free speech to people. It is not. The government does not have that right. It is innate, or inalienable, and exists outside any kind of government grant.
This is, like, Free Speech 101 here. It's also Copyright 101 that copyright is not this kind of right. Copyright is not inalienable; it exists solely because the government grants it. Free speech is not this kind of right at all. It never was. Placing the two in equity is simply wrong.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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You missed the point. The subjective belief (or even the actual knowledge) that the use is not authorized by the copyright holder is not at all the same as believing that it is not authorized under fair use.
If they only pay attention to whether it is authorized by the copyright holder, and don't even attempt to determine that it is a fair use, then they have acted in bad faith.
You are right in that a fair use determination (absent a judge's ruling) is highly subjective, and a good-faith belief that it is not fair use is sufficient. But you must, at least, have this good-faith belief prior to issuing a takedown notice.
Lenz is arguing that they did not. That's going to be hard to prove (if not impossible), which is why I doubt she's going to win.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Hyperbolic Mike!
Well, "supposed to prevent" then. The government acted unconstitutionally in that situation. It probably wasn't the first time, and it certainly won't be the last.
But let's say that the Supreme Court had a chance to declare the Sedition Act unconstitutional. They wouldn't have "expanded" the First Amendment.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Hyperbolic Mike!
Joe, you really need to stop conflating the statutory rights granted in copyright with the inalienable rights enumerated in the Bill of Rights. They are not the same at all.
For example, it's not possible to "expand" the First Amendment. The First Amendment prevents the government from making any law that abridges on the exercise of free speech. It can't be "expanded," because it's never "granted" in the first place.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Hyperbolic Mike!
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