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Fair Use is Not a Constitutional Right
jmichaelg writes: "Ed Stroligo at overclockers.com has written an article on the fair-use provision of the 1976 copyright law. He goes into some depth on the difference between a constitutional right vs. a legal right as well as covers the Betamax, Napster and Rio cases. It's a well thought out article and definitely worth the read."
Reasonable people agree that the creator of a work should compensated for his efforts, hence copyright - but it has no basis in the constitution. The real question deals with practical issues surrounding the rise of the internet. With the possibility of instaneous distribution and infinite, perfect replication, how can creators be compensated for their work? MegaCorp Inc. wants everything regulated, which is never going to happen. Slashdot types want everything free as in beer, which doesn't encourage creation. So until someone finds a decent way of paying artists aside from CDs, books, etc. people are going to keep stealing digital things because it is a better way to distribute.
As usual, the extremes on either side of the argument need to be tempered to find a workable solution. And it isn't going to be found in the Constitution.
I think a *lot* of people have forgotten one very basic principle: the Constitution of the United States (a la Bill of Rights) is not designed to enumerate every single "right" we have as human beings. This is a very common misconception, and an extremely dangerous one at that.
Kids in school these days are being taught that the government "gives" us a set of basic rights. This is an incorrect, but unfortunately somewhat prevalent view. The government does not *give* us rights; we have these rights just as surely as we have a nose. The role of government in this case is to *protect* those rights which we already have.
Here's the problem: if you "educate" an entire generation of Americas to believe that the government gives us rights, you end up with the unfortunate consequence that we must also accept that what is given may be taken away. This tends to work out well for those in positions of power, and poorly for the average citizen.
This is one of my top reasons for wanting to spend at least a few years of my life teaching. Teachers carry a responsibility to accurately convey knowledge, and the ability to use critical thinking skills, to our soon-to-be citizens. No, I'm not saying I'm God's gift to teaching, or even that I'm right all the time (probably wrong more often than I'd like to admit). I *am* saying I'm interested in taking a stab at changing things.
The Constitution doesn't say I have a right to wipe my own @ss, either. Fortunately, the framers of the Constitution weren't that stupid:
Amendment IX
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
What needs to be done is a clarification on just what exactly copyright is. As near as I can tell, this is what it should be: authors and inventors shall be rewarded with a monopoly on the sale and distribution of their respective works. Infringement of copyright then becomes a theft of market. Unfortunately, with Washington so thoroughly bought and paid for, I doublt that we'll see that kind of system any time soon.
BlackGriffen
1. part of the purpose of Fair Use is to preserve the public's First Amendment right to discuss copyrighted works. The fact that some of these rights are explicitly recognized in copyright law doesn't mean that Fair Use is inherently limited to what is in the current law.
2. where there is a conflict between the Constitution's provision for copyrights and the First Amendment, the First Amendment should be presumed to override the original language, because the very purpose of an amendment is to modify the Constitution.
none of this means that people can copy whatever they wish and claim Fair Use. on the other hand, laws that impose criminal penalties on reasonable exercises of the First Amendment should be shot down at the earliest opportunity.
There's a difference between fair use, and theft. Fair use is me listening to the song in my house. Fair use is me making a copy of a CD in case the cd gets scratched. Fair use is me copying a cassette in case the tape player eats it. Fair use is me using a copyrighted mp3 in a presentation on digital audio encoding for a class in school. Theft is you writing a song, me taking the song and telling the world that indeed I wrote the song not you, and I should be given the credit. Theft is me downloading a copy of the song without paying you. Often when I download music from the internet I send checks to the artists for an amount of money I feel their music is worth. If I don't like/delete their music I don't pay them. I don't buy CDs in the store because the RIAA gets all the money, not the artists.
Prime example is Japan, where CDs cost a fortune, because the artists get a large large portion of that money.
Fair use != theft. I wont steal. But if one day what I feel is fair use is considered against the law, so be it.
The GeekNights podcast is going strong. Listen!
If you intend to take this as a civil rights matter, then you have my deepest respect. But to make it a civil rights matter in the tradition of Martin Luther King and his followers, you must do it as they would have.
To wear the mantle of civil disobedience of the cause of civil rights, you must bear the crown of thorns that goes with it. You must make your violation flagrant, obvious, and nonviolent. When the police(or civil litigation lawyers) do come to deal with it, you must at most passively resist them, never denying that you committed a crime and never opposing them with either deceit or violence. When they drag you to court, you must forgo any pretence of innocence and instead focus on the fact that the laws you broke should not be laws. When the judge passes the sentance, you must accept it stoicly, and suffer whatever punishment he hands down passively, putting your hope in the populace to support you, the legislature to change the laws you broke, and if you are truly lucky the executives to pardon you.
And when you finish suffering whatever reprecussions they hand down, you must be ready to do it all over again, still stoicly, still nonviolently, and still suffering whatever punishment they hand down, taking your consolation only in the fact that your cause is just and your actions righteous.
That would be noble, that would be admirable, and that would be in the tradition of the civil rights movement and Martin Luther King.
On the other hand, to just violate the laws for your own selfish reasons, concealing your actions if not from the world at large, at least from thoe who would punish you, and being ready and willing to do whatever legal manuevering is necessary to minimize the punishment if you are caught is not civil disobediance in the name of a cause, it is just a lack of respect for the authority of the government, and that is something that both Martin Luther King and the Christ he followed would disdain.
Since we are talking about legal issues and correct classifications and obviuosly some people will never get it straight:
copyright infringement != theft
Property rights have nothing to do with copyright. The laws governing those two subjects have totally different motivations.
***Quis custodiet ipsos custodes***
...which consists of 10 minutes of reading and another 20 of thinking about what the author said, let me put it down into a single sentence.
"Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original."
---Universal v. Reimerdes
US Second Circuit Court of Appeals
You have the [legal] right to use it in a specified manner, albeit a limited one.
Except that's not the scenario you should anticipate. If you provoke the ire of the media monopolies, they won't have you arrested. They'll sic their lawyers on you. Which will tie up all your assets in litigation until you relent.
Nor should you expect society to respond to your actions the way it did to the Civil Rights movment. That was about fundamental matters of human dignity, like being able to sit down while riding the bus, or use a public bathroom, or buy a house, or do a thousand other things most of us take for granted.
Many people might think you also have the right to listen to a song without buying the whole album, or watch Sex and the City without subscribing to HBO. But let's get real: these issues will never inspire the same level of outrage and activism.
This unfortunately sounds like pedantic ranting to me, although I see the author's point. I like being able to get MP3's from LimeWire without paying for them. It's saved me a fortune in buying CD's with 1 song I like and 15 that I hate. It's saved me gas by not having to drive to my local Media Play.
It's also illegal, and it should be illegal. I know it's illegal, but I've gone and done it anyway. I have no moral defense, because there is none. If I use someone else's works, then I should compensate them for it. I work in the media industry, for crying out loud! I would hate to have someone using MY stuff and not compensating me for it. If this sounds hypocritical, it's because it is.
Now, in a perfect world, I would happily hand over the royalties to the song owners/producers/artists and everyone would be happy. The problem here is that I can't do that. Sony, Bertlesmann, etc. want their share. The problem there is that Sony, et. al. are music distributors, not creators. They only publish the music, stamp the CD's, and ship them to Media Play. If I download an MP3, they incur none of that cost. I should just be able to compensate the artist and be done with it.
The huge music companies have all worked very hard to prevent consumers from having too many choices in how to purchase their products. They can do this because there are only a few huge megalithic companies, and they all know each other very cozily. They simply will not give up their lucrative business for anything else, even perhaps a just as lucrative business selling music online, one song at a time. Anybody remember how badly the MPAA and the RIAA tried to fight VCR's? Now video rentals and sales account for 40% of a movie's total take!
I would personally pay a nominal fee per month (say, $19.95) to be able to download high-quality MP3's that are legal and licensed. It would be so damned convenient nobody would care about pirating the music. I believe that convenience is one of the largest reasons MP3's have become as popular as they are. After all, who wants to stand in line? Who wants to browse endless racks of CD's looking for that one song you want? If the record companies would wake up and realize that they're sitting on a potential gold mine just as large as their current monopoly, we'd all be able to be happy AND legal.
Alas, 'tis not to be, I think.
In the end they will lay their freedom at our feet and say to us, Make us your slaves, but feed us. - Fyodor Dostoyevsky
Most people would consider it an individual liberty to be able to use what they paid for in any way the choose, whether it be ripping a CD to mp3, ripping a DVD and encoding to some other format (requiring DeCSS), or just owning a computer that has an unrestricted memcpy() . It's considered a basic right to bear arms, so are you telling me it's not, to own something that can copy bits?
First, who exactly decides what "reasonable people" are? Second, copyright was originally more "reasonable" at a 7 year term, then more "reasonable people" came along and now look where we're at. Finally, "it has no basis in the constitution" is just wrong, because the Constitution is the sole source of authority for the Federal Government to make laws. If copyright didn't come from the Constitution, then it is an illegal law.
Hellooo, DMCA, SSSCA. We said the former was "never going to happen", and it did. The latter... won't pass this year, maybe. The future is not a very bright one, though.
Uh, hello, first off "Slashdot types" (of which I believe I qualify) likely want more: everything free as in liberty; free as in beer is just a nice extra. This "doesn't encourage creation"? What do you call these:
Or maybe that business model just isn't going to work anymore, so they better get a different job or find a different way to make money. There is no guaranteed individual right to make money on a given venture. The reason we originally had the copyright was to further society, not line corporate pockets. Artists can control their work, possibly making money for a short period of time, then work is returned to the public domain. That's not how it works anymore.
No. The end has already been determined. Like a Myrddraal, MegaCorp Inc. has already been killed, but they're too dumb to realize it, and it doesn't mean they're not still dangerous (see DMCA and SSSCA).
Don't think of it as a flame---it's more like an argument that does 3d6 fire damage
If I purchace any item I should be able to do whatever I want to it. Including and not limited to:
modification
destruction
reverse-engineer to make myown.
transferral to another party via resale or gift
However, what I cannot do is make cloned copies and re-distribute them as the original.
If I go to the store and purchace the latest Stephen King novel and then read it, It is completely within my right to resell that book.
I do not own the copyrighted work, the text of the work. I own the materials that make up this specific copy of the work. This gives me the right to do whatever I want with my copy of the work. I can paint all the pages blue and stick feathers on the covers. I can then sell my Stephen King case-mod.
I can even try to sell it at a price greater than my purchace price. It is my copy. I can redistribute my copy!!!
I can buy 100 copies of the book. Do the same mods as well as number them. I now sell them as a limited set.
This all should be well within my right as I am taking materials that I legally aquired and combining them. I am not, however, making "copies" of the work.
I can even sit down and try to write my own stephen king type story. (I suck. I cannot write anything near SK)
I cannot try to redistribute my cloned King as the real thing (aside from the fact that it would suck and noone would believe it was him anyway)
People are choosing to use Napster and other data sharing software to redistribute their own unmodified "copies" of the original work.
This is where the law is being broken.
I can make as many copies as I want for my own personal use. I can do whatever the heck I want with my copies. I can NOT, however, redistribute those personal copies unless they ALL go with the original.
I can make a photocopy of parts of a StephenKing book to take with me on vacation. I do this for MY PERSONAL USE. Not to redistribute. This should be legal.
I cannot redistribute my own copies without the permission of the copyright holder. Or until the copyright expires.
Lets try another analogy with Beverages.
I purchace a case of Beer(tm).
I can then do whatever I want with the liquid in the can.
I can modify it - make beer batter shrimp.
I can destroy it - pour it over a fire.
I can transfer it to someone else -
sell it at a concert for 10x price.
give it away at a party
I cannot make exact duplicates for redistribution.
(even if we had cheap materials duplication technology)
However --
I can brew my own beverage that is indistinguishable from the original. As long as I do not attempt to pass it off as the original.
It really should be that simple.
If it is not, someone please tell me where I am wrong.
comment directly in my journal
You often see these is newspapers who are on one side or the other of an issue: when you do, you know the newspaper's biased.
davecb@spamcop.net
Kid, anyone who equates fighting against clearly unconstitutional oppression on the basis of irrelevant genetic characteristics with a bunch of snot-nosed brats not wanting to pay for other people's labor is beyond pathetic.
Hah! I bet people were making similar "arguments" whenever someone brought up civil rights for colored people. Because there was a time when people DIDN'T believe that those genetic characteristics were irrelevant. They DIDN'T believe that the constitution applied to colored people, because they weren't considered people.
Maybe the rights we'd like to have with regard to copyright isn't as fundamental as being able to sit anyplace on a bus, or come in any door of restaurant, but then again, maybe they are? Isn't the free exchange of information the most basic right of a society? In fact it's the cornerstone of our society. What use is free speech, if all the printing presses are controlled by the government. Controlled by the government on behalf of corporations, who are upset that the citizenery are copying their newspapers to, get this: READ THEM!
It all depends how you look at it. I didn't give a shit about law and politics until the DMCA was passed. Now I'm I understand the drive behind activists and other people I used to think were just a little too paranoid.
It seems that the framers of the constitution didn't foresee this loophole that copyright seems to have created. They were worried about people in government abusing power.. not corporations seeking profit.
I hope the civil disobedience keeps up, and reaches a fever pitch, until the corps do something so stupid that even average Joe can see it as stupid. Then perhaps in 100 years, someone will look back on it and shake their heads the way we look back on segregation and shake our heads.
As for the original post, well, I agree. I don't really care about these laws any more. I'm going to trust my instincts that copying my CDs into my iPod is as immoral as making ice in my refrigerator, and figuring out how to break any copy interference to do it is as immoral as changing the bag in my vacuum cleaner.
The basic principle is that only the enumerated responsibilities listed ( in the Const., State, Municipal, Neighborhood, etc.) are given to the government..ALL other rights belong to the individual......We submit to governance by citizenship and contract.
The Government does not GIVE us rights....We have them and give some up for the good of society! The government does not "start out" with all of the rights (or the right to all money either) and then "Give" them back to us.....
We start out with "All rights except these...." which we temporarily give to government at our pleasure....(at least in the old times)...that's why it's important to vote...always....
Like the presumption of innocence, this needs to be emphasized to kids in their civics classes.......
If you get the basics right, all the other stuff will fall into place.
One important test for this Right: The People consider that they have it. Criticism, parody and other fair uses has been viewed as a right of those derivitive creators.
The problem is that as long as our community pretends to want fair use protected for principled reasons but really just wants to go on pirating forever, we're not fooling anyone, and the lawmakers are going to push all the harder for controls. This makes legitimate fair use an innocent victim of the campaign against piracy.
I suggest that we drop the pretense and help to get the legislators focused in the right area. It is one thing to enforce laws against piracy, and entirely another to order that all computer equipment be rendered unable to make unauthorized copies. This is like outlawing machine tools because they could be used to produce Ford automobiles without the permission of Ford. Legislators the world over need to be shown how absurd this is, but we can't show them if we can't be trusted. If we're going to convince the world that the digital revolution means an end to high-valued content, we are going to have to clean up our act and become credible.