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Traffic fines work that way in several European countries such as Finland and Norway.

Of course until a judgement is delivered neither of us is wrong! Yet.

Going back to Boyle et al. did you notice how when the guy said "just make sure it's not a Simpsons character" he wasn't challenged. The writing between the lines here [I only just found there's an audio version, noscript!, it's much clearer now] is "this is how the law should be interpreted but not how it will be". I'm not really bothered how it should, just how it's going to be if someone has the balls to call Fox (or whoever's) bluff.

Boyle of course kills any possible discussion by claiming it's too facile a situation for him to even bother to cast his mind over - he mights as well say "if Hansen disagrees he's a moron", nice logic there. But, if *you* read the transcription you'll see that Hansen doesn't respond to this point, he's not been brought into the conversation yet - he responds to a different [straw man] question about is it against the law for a kid to say 3 words from a song or for a TV to be on in the background of a documentary (I think they specified it was a docu; these refer to the Simpsons and "everybody dance now" situations presumably).

If things were as clear cut as Boyle claims then Ms. Sewel's lawyer for the movie would have said "this is the clearest possible case of fair use, EMI will be laughed out of court". Would EMI really press a case they apparently knew instantly (according to Boyle) that they would lose. Indeed Ms. Sewel's lawyer should have pressed the point and offered to work no-win-no-fee. Also note we're talking 2005 here, no cases I know of have clarified the position yet - you'd think with publicity like in the NY Times that this "case" received that someone would have had the balls by now to push back with the support of the likes of Prof Boyle and the EFF. Even if Fox (eg for the Simpsons) go after you surely the US legal system can't be so corrupt that you can't win if Boyle is right.

Here's an idea for Prof Boyle - an documentary (advert length!) on Fair Use "if a film shows a TV on in the background [over his shoulder is Simpsons showing] or a person's cellphone plays a popular tune [Rocky plays on his cellphone]...". The ad would have all the "completely obviously Fair Use" material in. Then we'd have a bit more case law to look at methinks. Perhaps the opening of Wikipedia to video clips will lead to some litigation and clear up this area.

Tangentially, I find it strange that Profs Boyle and Hansen claim to disagree about the purpose of copyright - it is of course a deal between individual and state in which Boyle and Hansen are both right: an opportunity to gain from your creative labour protected by statute in exchange for placing your work in the public domain.

[ http://palimpsest.stanford.edu/byform/mailing-lists/amia-l/2005/10/msg00199.html - story with quote from Sewel about lawyers considered opinion]
[ http://blog.stayfreemagazine.org/2005/06/mad_hot_ballroo.html - ditto ]

I worked in intellectual property for the UK government. I read the entire post and did some back research on the Prof, FWIW. I've read a deal of statute and case law reports (not so many actual verdicts and far less of court transcriptions) for many aspects of US copyright law.

I agree that the situation is ludicrous that these sorts of cases should be free to use the material but in this instance I don't think Sewel would win a Fair Use case. I have the utmost respect for Prof Boyle particularly as I'm a user of CC licenses, his book is good too ( http://yupnet.org/boyle/archives/182 ). I hope I'm proved wrong.

How about a $71,400 speeding ticket in Finland? http://www.stayfreemagazine.org/public/wsj_finland.html

This is one case where truth is stranger than fiction.

There was a textbook manufacturer that got in trouble for doing exactly that.

I note from the Wiki article that the Court was not unanimous on that:

"I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." -- Clarence Thomas

I see I should have included more links, so here goes:

• "The High Cost of Free Speech"
  "No one considered advertising or other profit-motivated communications as constitutionally protected speech until fairly recently. According to legal scholars, the phrase "commercial speech" did not even appear in any decision of any court of the United States until 1971. Freedom of speech was an individual right, protected from abridgment by the federal government (and from state and local governments after 1931)."
• "Governmental Regulation of Commercial Speech"
• "Government Regulation of Commercial Speech"
  "The Supreme Court for many years took the view that commercial speech--speech that proposes an economic transaction--was not protected by the First Amendment. The Court reasoned that the broad powers of government to regulate commerce must reasonably include the power to regulate speech concerning articles of commerce."
• "Commercial Speech"
  "In recent years, the Court's treatment of ''commercial speech'' has undergone a transformation, from total nonprotection under the First Amendment to qualified protection."
• Findlaw has more info.

No, the First doesn't cover ads, see Free speech v commercial speech. After 1971 Supreme Court rulings whittled away at the separation of commercial speech and free speech. Whereas SC rulings before then maintained the separation. If that isn't enough, for instance if you don't accept that website, then try Findlaw. Julie Hilden writes that commercial speech should have the same First Amendment rights, rights it didn't have in 2001.

No, the First Amendment doesn't apply in this case. In this case the speech used is commercial speech and it's only been recently that commercial speech has even been considered. The phrase "commercial speech" first appears in a Supreme Court ruling in 1971. Prior to then the First was never applied to commercial advertizing.

Old school advice...

First of all, school up to the PhD is a pyramid scheme (currently failing):
"The Big Crunch" by David Goodstein (Vice Provost CalTech)
http://www.its.caltech.edu/~dg/crunch_art.html
The end result is "disciplined minds" who will not step out of line politically:
http://disciplined-minds.com/
Or journalistically:
http://www.chomsky.info/interviews/20051207.htm
"By the time you've gone through, you know, Oxford and Cambridge and here you could say Harvard and Princeton and so on, and even less fancy places, you have instilled into you the understanding that there are certain things that just wouldn't do to say, and that's what a good deal of education is. So the people who come out of it - and there are many filters, if people go off and try to be too critical there are many ways of discouraging them or eliminating them one way or the other. Some get through, it's not a uniform story. ... The more educated you are the more indoctrinated you are. And you believe you are being free and objective, whereas in fact you're just repeating state propaganda."

The reason schooling exists in its current form is to teach these seven lessons:
"The Seven-Lesson Schoolteacher" by John Taylor Gatto - 1991 New York State Teacher of the Year
http://hometown.aol.com/tma68/7lesson.htm
in order to prepare most people for a life of servitude to the military or factories (and to not be very thoughtful about consumption or politics either).
"The Prussian Connection" -- Gatto
http://www.johntaylorgatto.com/chapters/7a.htm
And from:
"A conversation with historian and author James Loewen. Sort of."
http://www.stayfreemagazine.org/archives/18/loewen.html
"We like to believe schooling is a good thing. But when it comes to understanding any problem with historical roots, we might expect that the more traditional schooling in history that Americans have, the less they will understand it. Students who have taken math courses are better at math. The same is true for English, foreign languages, and almost every other subject. But in history, stupidity is the result of more, not less, schooling."

Still, studies have shown that the only people who really get economic value out of an Ivy League degree or equivalent are those from lower middle class backgrounds. All other things being equal, for most other people it's not worth the money as an investment. See the book "Class" for some other details:
http://www.amazon.com/Class-Through-American-Status-System/dp/0671792253
Otherwise, consider:
"College is a Waste of Time and Money" (1975)
http://www.grossmont.edu/bertdill/docs/CollegeWaste.pdf
"College, then, may be a good place for those few young people who are really drawn to academic work, who would rather read than eat, but it has become too expensive, in money, time, and intellectual effort to serve as a holding pen for large numbers of our young. We ought to make it possible for those reluctant, unhappy students to find alternative ways of growing up, and more realistic preparation for the years ahead."

And consider those years ahead following Moore's Law will include computers 10000X faster than what we have now for the same price in 20 or so years.
http://www.transhumanis

I should also add:

http://www.t0.or.at/bobblack/futuwork.htm
"To speak of the "end" of work is to speak in the passive voice as if work is ending itself, and needs only a nudge from progressive policies to wind down without a fuss. But work is not a natural process like combustion or entropy which runs its course of itself. Work is a social practice reproduced by repeated, multitudinous personal choices. Not free choices usually -- "your money or your life" is, after all, a choice -- but nonetheless acts of human intention. It is (the interaction of many) acts of will which perpetuate work, and it is (the interaction of many) acts of will which will abolish it by a collective adventure speaking in the active voice. Work will end, if it does, because workers end it by choosing to do something else -- by living in a different way."

also: "The End of Work or the Renaissance of Slavery? A Critique of Rifkin and
Negri" by George Caffentzis
http://multitudes.samizdat.net/article1927.html

And the schooling system perpetuates the problem:

http://www.johntaylorgatto.com/chapters/7c.htm
"The devastating defeat by Napoleon at Jena triggered the so-called Prussian Reform Movement, a transformation which replaced cabinet rule (by appointees of the national leader) with rule by permanent civil servants and permanent government bureaus. ... At the top, one-half of 1 percent of the students attended Akadamiensschulen, where, as future policy makers, they learned to think strategically, contextually, in wholes; they learned complex processes, and useful knowledge, studied history, wrote copiously, argued often, read deeply, and mastered tasks of command. The next level, Realsschulen, was intended mostly as a manufactory for the professional proletariat of engineers, architects, doctors, lawyers, career civil servants, and such other assistants as policy thinkers at times would require. From 5 to 7.5 percent of all students attended these "real schools," learning in a superficial fashion how to think in context, but mostly learning how to manage materials, men, and situations--to be problem solvers. This group would also staff the various policing functions of the state, bringing order to the domain. Finally, at the bottom of the pile, a group between 92 and 94 percent of the population attended "people's schools" where they learned obedience, cooperation and correct attitudes, along with rudiments of literacy and official state myths of history."

http://www.uvm.edu/~jloewen/
"A sociologist who spent two years at the Smithsonian surveying twelve leading high school textbooks of American history only to find an embarrassing blend of bland optimism, blind nationalism, and plain misinformation, weighing in at an average of 888 pages and almost five pounds. A best-selling author who wrote Lies My Teacher Told Me: Everything Your High School History Textbook Got Wrong and Lies Across America: What Our Historic Sites Get Wrong."

http://www.stayfreemagazine.org/archives/18/loewen.html
"Now, when I asked my audience why educated Americans supported the war, they couldn't figure it out. One thing I heard is that since working-class young men had to go to war, naturally they and their families opposed it. But research shows that when people expect to go to war-whatever educational level they are-they tend to support that war. Because of cognitive dissonance, people come to believe in what they have to do. So I pointed out that there are two social processes, both tied to school, that could help explain why educated people supported the war. One, educated Americans tend to be more successful and affluent, and thus have more allegiance to society. They have a strong incent

BTW, thanks for your wholly invented numbers about Phillip Morris. We can all reach some really worthwhile conclusions from numbers you figure might be true.

You're right. I was quoting from memory a story that was almost 4 years ago. Sorry I don't have a photographic memory.

Here is a passage from an article that estimates the donation was around $125,000 while the production costs were well over a million. Note that this doesn't include air time, which is probably much more costly. There were also additional ads. I seem to remember one in which flood victims in Mississippi were getting fresh water from Philip Morris volunteers. IIRC, these aired quite a few times, during prime time and during popular sporting events.

Philip Morris declined to disclose the net value of the donated food (Per-pound wholesale costs for items such as macaroni and cheese suggest a value of about $125,000.). Neither will it reveal production costs for the ad (Producers not involved in the project peg its cost at well over $1 million, excluding airtime.). AmeriCares, the not-for-profit group that worked with the Belgian military to deliver the Kraft food, as well as medicine and other provisions, isn't mentioned in the commercial. AmeriCares vice chairman Andrew Hannah says that Philip Morris did contact his group about the ad, but only after production had begun. "They asked us if we wanted to participate in an advisory fashion or if we wanted to be mentioned, although it was not planned," he says.

but don't people do stupid shit they see in movies too?

yes they do. Found that trying to track down the story of the kids lying in the road after seeing it in a movie. That's a scene from The Program. And it lead to a death and a serious injury from idiots who got run over. I'm sure one could come up with examples of people doing incredibly stupid things under the influence of just about any piece of media. There must have been Shakespeare inspired killers at some point.

Linux Journal (subscription)
Linux Magazine
Wax Poetics (subscription)
2600 meaning to get subscription
sysadmin (subscription)
Ready Made (subscription)
Wired (only purchased in airports)
Mother Jones (off the rack, when the cover grabs me)
Stay Free! (subscription)
Future Music almost every month

And I buy about a dozen random magazines a month, news, music making

Don't be so sure -- a quick Google search on "commercial free speech amendment" gives a number of articles suggesting commercial speech is protected:

On the pro side: Over the past few decades the courts have taken a different view, granting free speech rights to commercial interests

On the con side: the US Supreme Court dismissed an appeal by the athletic apparel giant of a California Supreme Court decision last year that shocked the corporate world by saying basically that "commercial speech" is not entitled to the same degree of protection as "free speech"

I don't think it's as clear-cut as you suggest.

My initial reaction to your posting was predictable, I thought you were outright wrong and suspected that you were a spammer even though you stated that you are not.

After some research I am willing to give you some benefit of the doubt. But at this point I will still disagree with your conclusion and suggest the following reading and points:

From the Declaration of Independence all people are
...endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness...

And from the 9th Ammendment in the Bill of Rights you were eager to refer to
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And for some historical perspective on Commercial Free Speech the following article will provide some important insight
http://www.stayfreemagazine.org/archives/17/freesp eech.html

Conclusion
In the same way that the vagueness of the 1st ammendment provides commercial freedom of speech rights, the Decleration of Independance and the 9th Ammendment provide some vagueness for other rights which the rest of us have which spammers rights cannot "deny or disparage".

While you will find some support for free speech rights that allow for spamming it is obvious to me from doing some research that the individuals and the business entities that are bearing the brunt of the financial, productivity, and annoyance affects brought about by these spammers also have rights that are trampled by the spammer's free speech rights.

Furthermore, it is important to make a distinction between "free speech" and "commercial free speech" as they are not the same thing and in some cases have different tests they must pass before they can be guranteed the free speech right. While I agree, as does the Supreme Court, that commercial entities require the freedom of speech right, it does not play the same role or hold the same level of importance as our individual right to freedom of speech. To me this seems like simple logic, however, in recent history logic has been twisted or dumbed down in many cases so that free speech can cover just about anything to some people.

And finally, I would say to you that spamming should be banned based on the tests proposed by the Supreme Court:

Government may ban "forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity." A high percentage of spam is mis-leading, deceptive, or outright illegal. Of course this would have to be tested in court, but I'm giving you my judgement first hand from reading the crap.

And I would say that "bulk commercial e-mail" should be regulated based on the additional test proposed by the court. But as I think you were pointing out in your post, completely eliminating this marketing method just to make life easier may not only be bad, but may be wrong.


I should also point out that I make a distinction between spam and what you are calling bulk commercial e-mailing. In our culture spam has a negative connotation which has been derived from the fact that all that crap you want to protect is quite negative. Now bulk commercial e-mailing on the other hand could be acceptable if implemented with some manners and ethics.

burnin

1) Commercial speech is not a protected form of free speech as Nike just recently found out.

False. It is protected in a different manner.

some links.

2) The California law would probably be difficult to enforce against unsolicited, non-commercial (e.g., political, religeous, charitable, etc.) e-mail for the same reason. These are generally protected speech. I would be very surprised if they didn't allow this loophole.

Again, it will depend. Even the exceptions are still regulated with respect to suitable calling hours, misrepresentation, et cetera.

In these cases, it is not as simple as a pamphlet. With e-mail and phone calls you use (and sometimes abuse) someone else's resources to deliver a message. In a sense, that message is the "freedom of speech" part and the means of transmission (spam, commercial, billboard, mail) is where the battlelines get most often drawn.

As for the issue of whether sampling should be legal, I say yes. Check out the Beastie Boys album Paul's Boutique to hear sampling as an art form at it's peak.

Paul's Boutique is good, but Public Enemy's It Takes a Nation of Millions to Hold Us Back is excellent. It is a perfect example of how hip-hop sampling can be an artistic collage of hundreds of different samples, as opposed to the mainstream rap process of "looping", or playing someone else's track (be it guitar, bass, drum or entire song) and rapping over it. Check out PE's site here.

There is also a great issue of Stay Free Magazine (The Copyright Issue) that covers many different angles of art and copyright. It contains a brilliant interview with Public Enemy's Chuck D as well as some good articles on the public domain, Disney and the Sonny Bono Copyright extenstion act. The issue as a whole is essential reading for all those concerned with intellectual property and intellectual freedom, and I highly recommend it.

This month's issue of the 'zine stay free! has companion articles and a CD with some of the pieces in/related to the exhibit, like negativland's U2 radio mix and sampled tracks from De La Soul and the Beastie Boys. I'm looking forward to seeing the exhibit in Chicago.

Adbusters is just a commodification of the whole anti-consumer counterculture. Try Stay Free! Though, it's published much less frequently than adbusters.

The Constitution only guarantees individuals, not companies, free speech.

I wish you were right, but unfortunately, the Supreme Court ruled, seperately, that corporations are individuals for the purposes of the first and fourteenth amendments.

I only have a link for the first amendment case, CONSOLIDATED EDISON CO. v. PUBLIC SERV. COMM'N, 447 U.S. 530 (1980), which is the one that specifically states that corporations are entitled to free speech protection under the constitution.

In addition, here's a more general article about the issue, which is less detailed but much easier to read than the supreme court opinion.