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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."
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.
The Copyright of Act of 1976 was intended to preserve the judicially developed doctrine of fair use and "not to change, narrow, or enlarge it in any way." (4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.05, at 13-150 & n.7). Fair use is still very much a creature of the courts. Congress identified a list of four factors that the courts must consider, but there are no bright line rules.
The judicial origins of the doctrine lead one to ask the question, if there were no fair use doctrine, would the Constitution obligate courts to come up with one? There is a strong argument that fair use is mandated by the Constitution. It goes as follows:
U.S. CONST. art I, 8, cl. 8 reads: "The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Thus, Congress's power in creating copyright is arguably limited to those actions that promote "the Progress of Science and useful Arts." Fair use doctrine prevents copyright law from serving as a bar to progress. Thus, if courts did not recognize a fair use defense, the Copyright Act, as applied in certain cases, would be unconstitutional because it would effectively prohibit activities which the Congress has no constitutional authority to prohibit.
I like this argument better than those that rely on the First Amendment, because it does not need to reconcile conflicts among different provisions, relying instead on the copyright clause itself.
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.
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
Wrong on two accounts. First, copyright (and patents) does have its basis in the Constitution. Article I, sect 8, paragraph 8:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; i.e., copyright and patents. Secondly, and this is more about semantics, but in modern "creative" industries, the creator, per se, does not own the copyright; the copyright is owned by a company with which the creator has contracted. Granted the creator receives some money, but people in the industry (here the recording industry) like Courtney Love have stated the amount is nowhere near what Joe Sixpack believes it is. 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. And that is the problem. Market forces should determine that way. My belief is that current "rampant" (according to the RIAA & MPAA) piracy is because they held a near monopoly on the distribution of music and movies. Specifically regarding the music industry, once Napster, et al, showed up, the consumer was able to exercise his/her market force by turning away from over-priced CDs. The music industry has been milking consumers with an incredibly over-priced product for over a decade (probably more, but I am giving them the benefit of the doubt and assuming that CDs originally were expensive to produce and a risky venture, c.f. the Betamax format). The industry cries about how much it costs to market and produce a CD, especially from an unknown artist; however, look at most of the music that the industry puts out. It's crap (IMNSHO). If the RIAA spent less time and money polishing turds (c.f., shit, c.f. most music, turn on your radio fer christ's sake) and actually trying to find and promote good artist, in addition to pricing their product more reasonably, I am sure they would have better fortunes. (And needless to say, if the content industries didn't waste so much money buying politicians, I am sure they would have more profits.) <rant type="personal_anecdote"> The problem is that the industry didn't embrace the new technology. A personal anecdote: A few years ago when I was a sophomore at Uni, a friend introduced me to the British group Portishead, which I believe he discovered via mp3s. I downloaded all their tracks I could find and enjoyed them enough that I shelled out the money for all their CDs that I could find. (Since they seem to be somewhat of an underground group in the US, they didn't have many albums; however, I bought what I could find.) Similar events occurred when I rediscovered Weezer (my roommate liked them, but I wasn't really into them at that time). I have since purchased their three albums, plus some (due to CD damage). Granted, I may be in the minority; however, I really fucking hate the stupidity that is evident in the industry by ignoring people like myself, people who used tools available to them to discover new music and try to give back to artist, and instead promote Corporate Fascism (hmmm, Nazi = National Socialism, how about Cozi for Corporate Socialism?). </rant> -MKDMost 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
This article says that DeCSS somehow gets around the copy protection embedded into DVD's. As I'm sure most of you know, this isn't technically true. The purpose of CSS is not copy protection but content control. CSS allows movie studios to decide when, where, and by whom the DVD is viewed. Lets say you're in Europe and you'd like to watch a DVD that has just been released in the states. Under the ordinary laws of commerce if you've got the money to buy that DVD then you get to watch it. Not so with CSS. Now movie studios have the ability to pick and choose which titles get released in which region at which price. Lets say there is a title that the powers that be in your country have banned because they don't like it. CSS gives the MPAA the perfect means by which to implement and support this oppression by foreign governments. None of this is right or just. The idea behind copyright is to give producers of works certain rights and protections to encourage the creation of art and knowledge. Unfortunately with things like the DMCA and CSS, non-producers such as the MPAA are perverting the concept of copyright. Where traditionally copyright has been used to define when, where, and by whom a particular work is COPIED, it is now being used to control where, when and by whom a particular work is viewed, read, seen, or otherwise utilized.
Imagine if there was CSS for books and in order to read a particular book you had to live in the right country, be of the correct race or social group, and pay a surcharge to the book cartel every time you wanted to read it. As it stands now books are independent entities. Once a publisher prints a book and sells it, that publisher has no control over what is done with that book other than a legal right to control whether it or portions of it are copied or used in other works. You can read this book, then give it to your friend to read. The publisher can't come have you and your friend arrested because he hadn't paid for the "right" to read that book. You can smuggle books that are unpopular with an oppressive regime into that country and the words will still be legible.
The problem with CSS is not that it is a copy protection scheme, but that it is a scheme to control who uses the DVD, which has nothing to do with copy protection or copyright.
If I remember right a group of video pirates were busted here not too long ago for copying DVD's. What I heard about that case is that they were copying the entire DVD bit-for-bit whether it employed CSS or not. The copied DVD's were still encoded using CSS. So what possible use is it as a copy control scheme? None of course, but its very useful for controlling which people get to watch the DVD.
Another group that is trying to pervert copyright into content control is the "church" of scientology. They employ copyright and trade secret law in order to try and prevent anyone from knowing the truth about their "religion." The truth is that scientology is nothing more than a highly successful scam that robs people of their money, enslaves many in the "Sea Org," and destroys families by forcing those in the cult to "disconnect" from relatives who are critical. Their abuse of the legal system is legendary. Their policy of filing suits for harassment value alone is such that I'm amazed their lawyers havent' been disbarred by now. The organization's sole purpose is to sucker people out of their money that is then passed "uplines" to the likes of David Miscavige. Their use of front groups and interlocking corporations to facilitate the laundering of this money would make John Gotti weep. If you want to find out more about this kriminal kult take a trip to www.xenu.net Be sure to pass this on to your friends too. The more people know the truth about this criminal organization, the fewer potential victims the cult will have to feed upon.
Lee
Muslim community leaders warn of backlash from tomorrow morning's terrorist attack.
a bunch of snot-nosed brats not wanting to pay for other people's labor is beyond pathetic.
And your belief that "snot-nosed brats" are the only ones with a stake in the consequences of the ownership of ideas is laughable. The patenting/copyrighting of DNA threatens to create a much more insidious era of subjection, and what good is freedom of expression if all the obvious ideas and ideas you'd like to use as building blocks for your own new ideas are owned by immortal corporations?
If you can't see the perils inherent in this system, you are extremely short sighted.
microsoftword.mp3 - it doesn't care that they're not words...
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
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.