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.
Sure it is. The Amendment says that ONLY "Congress" can make no law. The word "Congress" has been interpreted more and more broadly. It wasn't until 1925 (IIRC) that the Supreme Court decided that the First Amendment bound states as well as the federal government. So for about a century and a half, the Amendment only applied to the federal government. But then for the past 8 or so decades, it applies to state governments as well. That's a huge broadening of meaning.
This is because there are more avenues of speech nowadays.
Music existed when the Amendment was drafted, but it was not included in "speech." Years later, the definition of "speech" was expanded to include music.
The meaning of the First Amendment hasn't changed at all; just the implementation of it.
If one day the Amendment regulates only "Congress" and only "speech," but then the next it regulates state governments and music, then the meaning has been expanded. You're making zero sense with this argument.
So did you really run off and read up on the case just so you could say something intelligent about it? LOL! That's good. Mike should follow your lead.
So you begrudgingly admit that it is probably fair use.
Nothing begrudging about it. I think it's probably fair use. Period.
So, which is it aj?
It didn't violate her free speech rights because it's a private website. 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.
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.
I disagree. The First Amendment has been greatly expanded. For example, the First Amendment limits what "Congress" can do. It's been interpreted to include far more than just Congress. It includes the states, the judiciary, and the executive. "Congress" is a synedoche, representing more than it's literal meaning. Same thing with "speech." The First Amendment covers way more than just speech--it covers art, music, and more. "Speech" is just a synedoche too. Today, "speech" even means conduct. So I completely disagree with you. The meaning of the First Amendment has been expanded to a far, far greater number of things that it did not apply to when written. This is common knowledge, and I'm surprised that you're arguing that the meaning of the First Amendment has never changed. That's absolutely untrue.
If you want to prove the copyright system wrong, then compete with it fairly. Let's see the "free" movement create books, movies, music, etc. that everyone wants so bad that they're willing to turn their noses at the copyrighted stuff. That hasn't happened. Maybe one day it will, but the fact will always remain that whatever system is in place will need to provide a system for paying everyone who makes content--which includes lots of people behind the scenes.
Subjective laws though still need a reasonableness part to them, otherwise any mental incapax person could state anything whatsoever and the court would have to take them at their word no matter their state of mind.
You're trying to inject an objective standard into a purely subjective test. The court in the Lenz case adopted the test from the Ninth Circuit Rossi case:
The overall structure of § 512 also supports the conclusion that § 512(c)(3)(A)(v) imposes a subjective good faith requirement upon copyright owners. See Wilderness Soc'y v. United States Fish and Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc), amended by 360 F.3d 1374 (9th Cir.2004) (“[I]t is also a fundamental canon[of statutory construction] that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”) (citation and internal quotation marks omitted). In § 512(f), Congress included an expressly limited cause of action for improper infringement notifications, imposing liability only if the copyright owner's notification is a knowing misrepresentation. A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. See § 512(f). Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner. Id.
Rossi v. Motion Picture Ass'n of Am. Inc., 391 F.3d 1000, 1004-05 (9th Cir. 2004) (emphasis added).
There has to be actual, on purpose misrepresentation. As I said above, given the elusive nature of fair use, and the fact that the person making this decision didn't (and couldn't) have all the facts, I don't think Lenz has a chance at winning on the misrepresentation claim.
I think it probably is fair use. But that doesn't mean that another person who views it and subjectively thinks it isn't is in bad faith. Given the multifactor analysis that turns on questions of fact and law, I'm not sure how anyone's conclusion of infringement when there's a colorable fair use argument could ever be in subjective bad faith.
That said, it's not an impingement on her freedom to have her video taken down anymore than it is for me to have her arrested for swimming in my pool without my permission. Give me a break. You guys really got behind a silly case, and you're trying to blow it up into something it's not. I agree that they could have left the video up. I also think that they were in the right to challenge it since there is a prima facie case of infringement.
You are totally nuts! Copyright takes rights away from one subset of the people (i.e. the general public) and gives it to another subset of the people (i.e. publishers and artists). It grants citizens power to control the speech of other citizens. That's not the promotion of freedom, unless you define "freedom" as enabling an otherwise insolvent business model.
As the Framers recognized, property rights promote the public good. Copyright in particular incentivizes the creation of expression, which promotes the public good. The anti-copyright zealots are missing the forest for the trees. Just think of all the great copyrighted works that are out there. There so wonderful that folks are willing to break the law to get them.
copyright is subordinate to the first amendment and copyright must yield to the expansion of free speech, not the other way around.
If copyright were completely subordinate to the First Amendment, then there wouldn't be copyright. Yet we have copyright precisely because the First Amendment gives way to it.
Hey, Mike might be a smarmy, chubby pirate apologist, but he's not a vindictive asshole like you!
Yet he spends all day long "getting back" at anyone and anything pro-copyright. And he's so blinded by his hatred that he can't be intellectually honest. Not to mention that he's an absolute douchebag to anyone who dares to disagree with him. So, um, he's exactly a "vindictive asshole" as well.
Employees at UMG do not determine whether infringement has occurred. The law does.
You have it backwards. The whole point of the DMCA takedown notice is so that a good faith right holder can have content removed from third party services without the need for a trial. The DMCA allows the right holder to make a good faith claim about infringement. It allows the party that uploaded the material to file a counterclaim if they disagree with the right holder's claim. And most importantly, it allows third party service providers, like YouTube, to operate with next to no liability for copyright infringement.
oh... so you are saying now that you actually have no idea what you were talking about?
okay. now we know.... thanks for clearing that up
The point was that Mike's an originalist or a living constitutionalist depending on what suits him. If copyright becomes anything that it wasn't in 1791, then that's a terrible thing and the work of evil lawyers (originalist). But if the First Amendment means anything today that it didn't mean in 1791, then that's great (living constitutionalist). His own theory of constitutional interpretation ebbs and flows with whatever conclusion he wishes to arrive at, i.e., he's working backwards as he always does.
In hindsight, I guess my point was too subtle. The point is that Mike can't keep his analysis straight, and he'll just latch onto whatever theory arrives at the conclusion he prefers.
Perhaps because the 1st Amendment is one of the Bill of Rights-- one of the fundamental rights guaranteed to the people-- and copyright is... not.
It's generally considered a good thing when the people are given more freedom, and a bad one when the people have it taken from them. The 1st Amendment does the former, the Copyright Clause the latter.
Congress exercising one of its enumerated powers doesn't mean that someone's had their freedom taken away from them. Copyright is just a property right given to authors because ultimately that serves the public good. It doesn't take away anyone's freedom--it promotes it.
I'm just pointing out how silly it is that Mike rants about the expansion of IP, but he never complains about the similar expansion of the First Amendment.
Subjective means that the person actually believed it, versus objective which is what a reasonable person would have believed under the circumstances. The court in this case has said that it's a subjective standard. This means the EFF will lose the argument. All the intervening years of the case have been used for discovery, and what's come out is the fact that an employee at UMG reviewed the video twice before determining that there was prima facie infringement. That's good faith. This case is just a cause celebre trotted out by the anti-copyright zealots. They're all a bit fast and loose with the facts, of course. You don't Techdirt actually cares about facts when there's a good rant to be had, do you?
expanded-- rather than contracted-- the legal definition of what qualifies as speech.
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!
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
Sure it is. The Amendment says that ONLY "Congress" can make no law. The word "Congress" has been interpreted more and more broadly. It wasn't until 1925 (IIRC) that the Supreme Court decided that the First Amendment bound states as well as the federal government. So for about a century and a half, the Amendment only applied to the federal government. But then for the past 8 or so decades, it applies to state governments as well. That's a huge broadening of meaning.
This is because there are more avenues of speech nowadays.
Music existed when the Amendment was drafted, but it was not included in "speech." Years later, the definition of "speech" was expanded to include music.
The meaning of the First Amendment hasn't changed at all; just the implementation of it.
If one day the Amendment regulates only "Congress" and only "speech," but then the next it regulates state governments and music, then the meaning has been expanded. You're making zero sense with this argument.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re:
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: Hyperbolic Mike!
Nothing begrudging about it. I think it's probably fair use. Period.
So, which is it aj?
It didn't violate her free speech rights because it's a private website. 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.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Hyperbolic Mike!
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.
I disagree. The First Amendment has been greatly expanded. For example, the First Amendment limits what "Congress" can do. It's been interpreted to include far more than just Congress. It includes the states, the judiciary, and the executive. "Congress" is a synedoche, representing more than it's literal meaning. Same thing with "speech." The First Amendment covers way more than just speech--it covers art, music, and more. "Speech" is just a synedoche too. Today, "speech" even means conduct. So I completely disagree with you. The meaning of the First Amendment has been expanded to a far, far greater number of things that it did not apply to when written. This is common knowledge, and I'm surprised that you're arguing that the meaning of the First Amendment has never changed. That's absolutely untrue.
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: Hyperbolic Mike!
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re:
You're trying to inject an objective standard into a purely subjective test. The court in the Lenz case adopted the test from the Ninth Circuit Rossi case:Rossi v. Motion Picture Ass'n of Am. Inc., 391 F.3d 1000, 1004-05 (9th Cir. 2004) (emphasis added).
There has to be actual, on purpose misrepresentation. As I said above, given the elusive nature of fair use, and the fact that the person making this decision didn't (and couldn't) have all the facts, I don't think Lenz has a chance at winning on the misrepresentation claim.
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: Hyperbolic Mike!
That said, it's not an impingement on her freedom to have her video taken down anymore than it is for me to have her arrested for swimming in my pool without my permission. Give me a break. You guys really got behind a silly case, and you're trying to blow it up into something it's not. I agree that they could have left the video up. I also think that they were in the right to challenge it since there is a prima facie case of infringement.
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: Hyperbolic Mike!
As the Framers recognized, property rights promote the public good. Copyright in particular incentivizes the creation of expression, which promotes the public good. The anti-copyright zealots are missing the forest for the trees. Just think of all the great copyrighted works that are out there. There so wonderful that folks are willing to break the law to get them.
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: Hyperbolic Mike!
If copyright were completely subordinate to the First Amendment, then there wouldn't be copyright. Yet we have copyright precisely because the First Amendment gives way to it.
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: Hyperbolic Mike!
Yet he spends all day long "getting back" at anyone and anything pro-copyright. And he's so blinded by his hatred that he can't be intellectually honest. Not to mention that he's an absolute douchebag to anyone who dares to disagree with him. So, um, he's exactly a "vindictive asshole" as well.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re:
You have it backwards. The whole point of the DMCA takedown notice is so that a good faith right holder can have content removed from third party services without the need for a trial. The DMCA allows the right holder to make a good faith claim about infringement. It allows the party that uploaded the material to file a counterclaim if they disagree with the right holder's claim. And most importantly, it allows third party service providers, like YouTube, to operate with next to no liability for copyright infringement.
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: Hyperbolic Mike!
okay. now we know.... thanks for clearing that up
The point was that Mike's an originalist or a living constitutionalist depending on what suits him. If copyright becomes anything that it wasn't in 1791, then that's a terrible thing and the work of evil lawyers (originalist). But if the First Amendment means anything today that it didn't mean in 1791, then that's great (living constitutionalist). His own theory of constitutional interpretation ebbs and flows with whatever conclusion he wishes to arrive at, i.e., he's working backwards as he always does.
In hindsight, I guess my point was too subtle. The point is that Mike can't keep his analysis straight, and he'll just latch onto whatever theory arrives at the conclusion he prefers.
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: Hyperbolic Mike!
Where's the "washed-up-and-bitter government servant" button when I need one?
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
It's generally considered a good thing when the people are given more freedom, and a bad one when the people have it taken from them. The 1st Amendment does the former, the Copyright Clause the latter.
Congress exercising one of its enumerated powers doesn't mean that someone's had their freedom taken away from them. Copyright is just a property right given to authors because ultimately that serves the public good. It doesn't take away anyone's freedom--it promotes it.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
Just gotta say, it's not nearly as funny as the caliber of your "reporting" on this case.
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re: Re: Hyperbolic Mike!
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Re:
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re: Hyperbolic Mike!
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!
On the post: Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?
Re: Re:
And if you took a moment to familiarize yourself with the record of the case, you'd know that they did--twice.
But TD doesn't let little things like facts or reality get in the way of anti-copyright hysteria.
Next >>