Nah, he'll never do that. Although he has now become defined as an apologist and essentially neutered politically, he still thinks his claim of not supporting piracy is crucial to his employment as a propagandist.
I'm sure you're right. That'd be like Rush Limbaugh saying, "You know what? My detractors have made good points that I will concede." No matter how true, Mike will never, ever concede a point.
Kinda funny since this seems to invalidate the whole point you were trying to make that because we discuss copyright fair use all the time, we suddenly need to also mention it here.
Protip: instead of trying to attack the strawman you've built up in your head that you think is me, trying actually taking the time to look at what we actually say. You might learn something.
You see fair use in places that it's not, so when you fail to mention it where it's actually present, that's noteworthy. Go ahead and pretend like you saw it. You and I both know that you just copied Sellars' analysis.
Great post, Karl. Thanks for all the cites. You're nothing if not thorough and thoughtful.
I think I understand the confusion now. To the extent there is an implied, fundamental right to the freedom of speech, it's never been the case that anyone had to cite such an unwritten right. The reason is simple: Free speech is guaranteed by the First Amendment explicitly. It's not some unenumerated, implied right. It's a right that's spelled out in the Constitution. As such, there's never been a need to explore the extent that the right would exist if it weren't specifically enumerated. The First Amendment is just the statutory codification of the right to freedom of speech.
So while in some sense there is the right to free speecdh in the absence of the constitutional guarantee, we don't think of it that way since the right is explicitly guaranteed in the Constitution.
Make sense?
I don't doubt there is some implicit right to freedom of speech. The point is that there's no need to go there since the right is mentioned by name in the Constitution. One would NEVER go to court and sight the unwritten right to freedom of speech that you're describing because there'd be no reason to.
Not only that, the unwritten right to freedom of speech is NARROWER than the explicit right in the Constitution. No court that I'm aware of has ever recognized an implied right to freedom of speech that is BROADER than the explicit one in the Constitution. Once the Constitution gives you a right, and this is a point I'm not sure you understand, that right is coextensive at best with the unwritten one.
For example, you can't go to court and argue successfully that the unwritten due process clause gives you rights that the actual, written due process clause gives you. In other words, the fact that there may be some unwritten right to free speech is irrelevant. It can never give you a right that you don't already have because of the ACTUAL free speech right.
So when you talk about some unwritten free speech right, I don't see the point. You're describing some right that we might have but for the fact that we don't. It's a diversion done Irrelevant Lane.
Well, for one thing, we the people can advocate for limiting statutory rights by law.
And lots of people can and do advocate for constitutional change as well. I think you are misunderstanding the issue. It matters not that there is some undefined, implied, extra-constitutional right to free speech. Nobody will ever have any free speech rights in this country that are not grounded in the First Amendment.
And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.
You're trying to frame free speech as a human right that supersedes copyright law in the U.S. It doesn't work that way. Congress has the constitutional authority to promulgate copyright laws. Copyright laws obviously clash with the First Amendment. The Supreme Court has addressed the issue and held that as long as the substantive copyright statute does not discard idea-expression dichotomy and fair use, then that statute will get only rational basis scrutiny. That is the supreme law of the land right now. If you go to court and challenge a substantive copyright statute on a First Amendment challenge, that is the test that will be used. What is perfectly clear is that the substantive copyright laws we have right now are constitutional. That means they don't violate the First Amendment. And more importantly for our purposes, the fact that the right to freedom of speech is to some extent implied is irrelevant: the full extent of the right is explicit in the First Amendment and the balancing between that right and copyright has already been done.
You're pointing out something that has no practical application. Do you have the right to freedom of speech? Yes. That right is encompassed, in toto, by the First Amendment.
That said, I hope you see that whether the right is thought of as an implied, fundamental right or as an explicit right is irrelevant. Either you have the right or you don't. And if you have the right in the U.S., the way you prove that you have the right is the First Amendment.
(Sorry, but I gotta run. No time to proofread this.)
So CNET has come out and said Masnick is a zealot.
Yes! How great is that? They say Mike is now a "spokesman for the copy left." I use "copyleft" to mean something else, so I'm not sure that's correct. Regardless, the point is that if you're looking for a "spokesman" for the anti-copyright/pro-piracy crowd, then Mike's your guy. Between this and the Google-shill-gate fiasco, I'm LMAO. One day Pirate Mike will just come out of the closet and let his pirate-freak flag fly.
My point was that not all "negative rights" are the same. For example, the monopoly enjoyed by the Dutch East India company was also a "negative right." But comparing free speech with the Company's monopoly would be wrong-headed in the extreme.
I said that constitutional rights are usually stated as negative rights, i.e., they state that a certain action cannot be taken. I have no idea what nonsense you're going on about. If some other right is also stated in the negative, and the comparison is made between that right and the First Amendment, then it's not "wrong-headed in the extreme." It's just a factual comparison. Regardless, my point remains that constitutional rights are typically stated in the negative, and nothing you've said has refuted that in any way.
Yes, they are. The right of free speech does not depend on the First Amendment for its existence. Everyone has it merely by virtue of being human. It would exist even without a First Amendment to protect it from government interference. If the government interferes with this right, it is unjustly infringing on a universal human right. That's why the First Amendment was created.
Think of this. Suppose there was no First Amendment. On the other hand, there also were no laws whatsoever against any kind of speech. Would you have the right to free speech? Yes. The only thing the First Amendment does is make sure the government doesn't interfere with this right.
In the U.S., the source of our free speech rights is the First Amendment. This is so basic and fundamental and obvious, that I honestly have no idea what you're talking about. Can you cite me some authority for the point you're making?
That's how it works in court. But when you say stuff like "Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!" you are not talking about what happens in court.
The reason it's noble to cheer on the "expansion" of the First Amendment, but not the expansion of IP, is that they are fundamentally not the same kind of right. There are different categories of rights, and one is not equal to another. For example, the right to due process is not equivalent to the right to take a right turn at a red light. It's entirely appropriate that someone care about the former more than the latter.
Either you (1) have a right, or (2) do not have a right. I understand that you may value some rights more than others, but in practice, either the right exist or it doesn't. Your right to have a contractual term enforced receives its day in court just the same as your due process rights.
You still haven't explained how in practice the source of the right matters.
I've done some research. Mostly I've found that free speech rights have contracted since the Bill of Rights was written (for instance, by Oliver Wendell Holmes' outright rejection of Madison's and Jefferson's view of free speech as a natural right). Also, a lot of things about federalism vs. anti-federalism that don't apply to this conversation.
The rationalization for the First Amendment is just the same then as it is now: that it is a fundamental (or "inalienable" or "self-evident") right, held simply by virtue of being a free human, that must be protected from government intrusion or control.
And yet the First Amendment is the source of the right to free speech.
Are you still denying that the scope of the First Amendment hasn't changed? If so, can you cite to even one single authority for the notion?
I dunno. I can't take the guts of a Dell computer and put them in a computer case I built and then sell it as a "Dell computer." I can sell it as an "AJ computer" while listing the Dell parts as components. The critical difference is that one use of the mark is descriptive and the other use is as a mark.
Maybe in the future, if you don't know anything substantive about a topic, then perhaps refrain from saying something substantive about it. Just a thought.
That's a good point. I was thinking that it's definitely fair use to list Nutella as an ingredient, because that's descriptive and it's true. But calling the drink a "Nutella milkshake" strikes me as possibly not fair use since there the restaurant is using the mark as a mark, and not merely descriptively.
He asked me if I skipped the day they taught trademark law. It wasn't a day, it was a whole class. And not only did I not skip, I earned the highest grade.
On the post: Apparently If You Explain Many Ways That Artists Can Make Money Outside Of Copyright, You're Against Artists Getting Paid
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I'm sure you're right. That'd be like Rush Limbaugh saying, "You know what? My detractors have made good points that I will concede." No matter how true, Mike will never, ever concede a point.
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There were 14 people in the class, so it's not that great of an accomplishment. But still, I'm proud.
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Protip: instead of trying to attack the strawman you've built up in your head that you think is me, trying actually taking the time to look at what we actually say. You might learn something.
You see fair use in places that it's not, so when you fail to mention it where it's actually present, that's noteworthy. Go ahead and pretend like you saw it. You and I both know that you just copied Sellars' analysis.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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I think I understand the confusion now. To the extent there is an implied, fundamental right to the freedom of speech, it's never been the case that anyone had to cite such an unwritten right. The reason is simple: Free speech is guaranteed by the First Amendment explicitly. It's not some unenumerated, implied right. It's a right that's spelled out in the Constitution. As such, there's never been a need to explore the extent that the right would exist if it weren't specifically enumerated. The First Amendment is just the statutory codification of the right to freedom of speech.
So while in some sense there is the right to free speecdh in the absence of the constitutional guarantee, we don't think of it that way since the right is explicitly guaranteed in the Constitution.
Make sense?
I don't doubt there is some implicit right to freedom of speech. The point is that there's no need to go there since the right is mentioned by name in the Constitution. One would NEVER go to court and sight the unwritten right to freedom of speech that you're describing because there'd be no reason to.
Not only that, the unwritten right to freedom of speech is NARROWER than the explicit right in the Constitution. No court that I'm aware of has ever recognized an implied right to freedom of speech that is BROADER than the explicit one in the Constitution. Once the Constitution gives you a right, and this is a point I'm not sure you understand, that right is coextensive at best with the unwritten one.
For example, you can't go to court and argue successfully that the unwritten due process clause gives you rights that the actual, written due process clause gives you. In other words, the fact that there may be some unwritten right to free speech is irrelevant. It can never give you a right that you don't already have because of the ACTUAL free speech right.
So when you talk about some unwritten free speech right, I don't see the point. You're describing some right that we might have but for the fact that we don't. It's a diversion done Irrelevant Lane.
Well, for one thing, we the people can advocate for limiting statutory rights by law.
And lots of people can and do advocate for constitutional change as well. I think you are misunderstanding the issue. It matters not that there is some undefined, implied, extra-constitutional right to free speech. Nobody will ever have any free speech rights in this country that are not grounded in the First Amendment.
And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.
You're trying to frame free speech as a human right that supersedes copyright law in the U.S. It doesn't work that way. Congress has the constitutional authority to promulgate copyright laws. Copyright laws obviously clash with the First Amendment. The Supreme Court has addressed the issue and held that as long as the substantive copyright statute does not discard idea-expression dichotomy and fair use, then that statute will get only rational basis scrutiny. That is the supreme law of the land right now. If you go to court and challenge a substantive copyright statute on a First Amendment challenge, that is the test that will be used. What is perfectly clear is that the substantive copyright laws we have right now are constitutional. That means they don't violate the First Amendment. And more importantly for our purposes, the fact that the right to freedom of speech is to some extent implied is irrelevant: the full extent of the right is explicit in the First Amendment and the balancing between that right and copyright has already been done.
You're pointing out something that has no practical application. Do you have the right to freedom of speech? Yes. That right is encompassed, in toto, by the First Amendment.
That said, I hope you see that whether the right is thought of as an implied, fundamental right or as an explicit right is irrelevant. Either you have the right or you don't. And if you have the right in the U.S., the way you prove that you have the right is the First Amendment.
(Sorry, but I gotta run. No time to proofread this.)
On the post: Apparently If You Explain Many Ways That Artists Can Make Money Outside Of Copyright, You're Against Artists Getting Paid
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Yes! How great is that? They say Mike is now a "spokesman for the copy left." I use "copyleft" to mean something else, so I'm not sure that's correct. Regardless, the point is that if you're looking for a "spokesman" for the anti-copyright/pro-piracy crowd, then Mike's your guy. Between this and the Google-shill-gate fiasco, I'm LMAO. One day Pirate Mike will just come out of the closet and let his pirate-freak flag fly.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
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Try this: http://en.wikipedia.org/wiki/Common_law_copyright#Other_uses
My point was that not all "negative rights" are the same. For example, the monopoly enjoyed by the Dutch East India company was also a "negative right." But comparing free speech with the Company's monopoly would be wrong-headed in the extreme.
I said that constitutional rights are usually stated as negative rights, i.e., they state that a certain action cannot be taken. I have no idea what nonsense you're going on about. If some other right is also stated in the negative, and the comparison is made between that right and the First Amendment, then it's not "wrong-headed in the extreme." It's just a factual comparison. Regardless, my point remains that constitutional rights are typically stated in the negative, and nothing you've said has refuted that in any way.
Yes, they are. The right of free speech does not depend on the First Amendment for its existence. Everyone has it merely by virtue of being human. It would exist even without a First Amendment to protect it from government interference. If the government interferes with this right, it is unjustly infringing on a universal human right. That's why the First Amendment was created.
Think of this. Suppose there was no First Amendment. On the other hand, there also were no laws whatsoever against any kind of speech. Would you have the right to free speech? Yes. The only thing the First Amendment does is make sure the government doesn't interfere with this right.
In the U.S., the source of our free speech rights is the First Amendment. This is so basic and fundamental and obvious, that I honestly have no idea what you're talking about. Can you cite me some authority for the point you're making?
That's how it works in court. But when you say stuff like "Oh wait, when it's the First Amendment, that's OK. But when it's intellectual property, it's the DEVIL!" you are not talking about what happens in court.
The reason it's noble to cheer on the "expansion" of the First Amendment, but not the expansion of IP, is that they are fundamentally not the same kind of right. There are different categories of rights, and one is not equal to another. For example, the right to due process is not equivalent to the right to take a right turn at a red light. It's entirely appropriate that someone care about the former more than the latter.
Either you (1) have a right, or (2) do not have a right. I understand that you may value some rights more than others, but in practice, either the right exist or it doesn't. Your right to have a contractual term enforced receives its day in court just the same as your due process rights.
You still haven't explained how in practice the source of the right matters.
I've done some research. Mostly I've found that free speech rights have contracted since the Bill of Rights was written (for instance, by Oliver Wendell Holmes' outright rejection of Madison's and Jefferson's view of free speech as a natural right). Also, a lot of things about federalism vs. anti-federalism that don't apply to this conversation.
The rationalization for the First Amendment is just the same then as it is now: that it is a fundamental (or "inalienable" or "self-evident") right, held simply by virtue of being a free human, that must be protected from government intrusion or control.
And yet the First Amendment is the source of the right to free speech.
Are you still denying that the scope of the First Amendment hasn't changed? If so, can you cite to even one single authority for the notion?
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