Sorry, but no. While 117 is generally inapplicable anyway, circumvention falls under 1201 et seq; 117 deals with infringement, which is not the same thing.
So, as I originally stated, a competitor marketing a competing product, in the same market under the same mark, is diluting the mark.
Well, while one could proceed under a dilution theory in those circumstances, that's something that's just tacked on to the real case, which would be about infringement.
Additionally, you seem to be forgetting that there are more prerequisites for dilution than merely "marketing a competing product in the same market."
There must be fame, which excludes the vast majority of marks. This means that there must be inherent and acquired distinctiveness, which excludes descriptive marks with acquired distinctiveness. The fame must extend to the persons in the market where dilution is claimed, e.g. Lexis (the legal research company) lost its dilution case against Lexus (the car company) because people in the car buying market don't usually know about legal research services.
There must be actual lessening of selling power of the purportedly diluted mark, which means you have to prove that it was the result of the dilution, as opposed to there being some other cause. Mere likelihood of dilution is insufficient.
And for all your trouble, if you can manage to win on the dilution theory, all you usually get is injunctive relief.
Infringement actions are easier to win, in the factual scenario you set forth, and provide damages as well. Dilution would probably be a waste of the client's money to argue if you can win on infringement. I'd be very hesitant to advise a client to do so.
And that's why when you see actual dilution cases, they're generally not about goods in the same market, using the same mark.
The term "dilution" means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.
The remedies for dilution, however, include this:
The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection.
and
The following shall not be actionable under this section... Noncommercial use of a mark.
Which would seem to indicate that while there there need not be direct competition between marks (e.g. Coke the drink and Coke the dry cleaners), they do need to both be acting commercially in commerce, and so they would at least need to be in your 'noncompeting markets.' If the purported diluter is outside of the market, then there's no remedy, and they might as well not be a diluter at all as far as the famous mark holder is concerned.
The entire point of trademark (as encoded here in the US in the "Lanham Act") is to protect the consumer from mistaking one product for another with the same name ("mark dilution").
No, you're confusing a couple of things here.
The point of trademarks is to avoid consumer confusion, but that's a part of trademark infringement.
Trademark dilution is when there is no confusion, and the marks are used in different areas of commerce (e.g. Coca-Cola soda and Coca-Cola Dry Cleaning Services). The idea behind dilution is that it is unfair to allow the notoriety of the more famous of the marks to be diluted by the less well-known mark, even though no one thinks that they're otherwise related or competing against one another.
Dilution is very new, and widely considered to be a very stupid idea. However, big business has managed to get antidilution laws on the books regardless.
At any rate, the reason why a mark holder needs to police his mark is to avoid losing it altogether. If others use it, then there is sufficient confusion that it no longer functions as a mark, and can be lost. And there may be sufficient loss of fame, that the junior mark supplants the senior in the minds of the public (e.g. if everyone did their dry cleaning at Coke, and forgot about the beverage).
But it's really more likely that a mark would become generic than usurped. (Though a non-famous mark is vulnerable to junior non-infringing users gaining fame)
What's wrong with the world is that 1> people trust lawyers (at all, certainly too much)
Well, I wouldn't agree with that at all. IMO what's wrong with the world is that there are entirely too few lawyers, and they're not getting paid nearly enough.;)
Well, you're assuming that we're not blocking the ads. I haven't had to put up with graphic ads for a while, and if Privoxy wasn't the world's biggest piece of shit, text ads would be gone too.
No. A person having ordinary skill in the art is one who has a complete knowledge of the prior art, but virtually no imagination. The fact that two independent inventors came up with something doesn't mean that an equally skilled but unimaginative inventor would have.
Well it has to be used in commerce, and no one would argue that the MM mark isn't.
The issue is whether the expiration of a copyright (or patent) can cause certain associated trademarks to expire. And the answer is that they can.
A trademark has to indicate that a marked good or service originates from a specific source which maintains a given level of quality (regardless of whether the quality is good or bad). The 'Coke' trademark, for example, must indicate that one entity (the Coke company) makes all the goods with that mark, and maintains quality controls over it.
Additionally, the mark cannot be the generic term for the marked good or service (i.e. the Coke company cannot get a trademark for 'soda' or 'pop' or 'soft drink'), nor can the mark be merely descriptive of the good or service in question. This is because the public and competitors are entitled to use those words as well.
In the case of Mickey Mouse, if the character entered the copyright public domain, then anyone is entitled to create works with that character. A trademark is not a substitute for a copyright, after all. This means that now Disney cannot control the quality of copies of creative works (a sort of good) using the character. Furthermore, since the name 'Mickey Mouse' is the generic name for that character, the trademark has suffered genericide.
So yes, Disney's brand would not only be hurt, it would -- with regards to some of their marks, anyway -- be destroyed.
Of course, they could fight where there was infringement on the 'Disney' trademark, but this just means that people making their own Mickey Mouse works have to avoid confusing people as to the origin of them. It doesn't mean that they cannot use the character, or that they even have to change it. Rather, they just say something like 'Joe Smith's Mickey Mouse' instead of 'Disney's Mickey Mouse,' which is what Disney would have to start doing, if they don't already.
It's not like they would lose the exclusive right to Mickey Mouse himself as I'm sure Mickey is trademarked.
They would lose exclusive rights to the character, as the trademark is no substitute for the copyright, and cannot be used to stand in the way of people making copies and derivative works of public domain works. There is a similar doctrine in the patent field. What happens in fact is that the relevant trademarks die along with the copyright.
Some marks might still be viable. Peter Pan is a valid mark in peanut butter and bus lines. But where creative works are involved, there's no chance.
Well, the problem I have with them is this: Patents exist only to provide an additional encouragement to inventors to do certain things that they would not have done otherwise (i.e. invent, disclose, and market their novel and nonobvious useful inventions).
In many fields, the encouragement of merely being a competitor with others is insufficient, though it is worth noting that inventions don't stop being useful when their patents expire, and that the lack of a monopoly on an invention doesn't mean that you can't still make a handsome profit. Thus, the additional encouragement of a patent is of use to the public, which is who wants to see more useful, novel, and nonobvious inventions come about, who wants to see them disclosed so that anyone can reproduce them later, and who wants to see articles embodying the invention in the marketplace.
The software field is special, however. At least for right now, I think that there is so much inventive activity going on that patents simply could not stimulate more of it. Likewise, software embodying these inventions often hit the market. Disclosure is at times an issue -- though for some inventions, the specific details of their implementation are not of huge importance. However, I think that it's best addressed with additional copyright formalities, rather than granting patents.
In fact, not only do I believe that patents will offer no additional encouragement to software inventors, I think that the monopolies they embody, and the high costs of complying with them or licensing them, will in fact reduce the amount of inventive activity going on in this field.
The only reason software patents exist is that there is a belief amongst many in the patent field that patents should be granted for any sort of thing under the sun, made by man, if it satisfies the various requirements for a patent. This is ideological, basically. I OTOH think we should remember why we have patents at all, and thus should grant them, or not grant them, for particular fields according to pragmatic values. In some sectors of industry, patents are beneficial; in a few, such as software, they're not.
I don't think that merely varying the term length is a good solution. Better to just ban them for the software field (and business method field) for now, and only reinstitute them if those fields slow down and finally actually require the additional encouragement.
I'm guessing that you must be the oldest/. poster around, since there have been criminal penalties for some copyright infringement since 1897. It's a dumb idea, but it's not new.
What I do not understand, why nobody comes up with an mp3 player that lends music, i.e., the original source is not able to play that one song, while another person listens to it.
It wouldn't matter. Computers make copies of data all the time -- it's how they're built. And that can trigger infringement, regardless of whether or not multiple copies can be used simultaneously.
it is legal to lend your CD to other people (e.g., friends).
DOWNLOADING is perfectly legal. Unless, in your jurisdiction, there is material which is deemed illegal.
Of course, unauthorized downloading of copyrighted works necessarily involves reproducing a work into a new copy, and that usually infringes on the reproduction right of copyright.
The premise that merely by having a phone I've automatically invited people to call is seriouly flawed. Using the same logic, by having a car, you are inviting people to ride in it? Take it for a drive? Steal it? Where is the line drawn?
Social custom, probably.
A phone is a communications device, and is ordinarily used to talk to people without prior permission. Not so for your purely silly attempts to extend this to cars and such.
I mean, it does have a door. Now, you don't have to answer it, however, I have the right to knock on it any time of the day or night, disturbing your existence, at will, and to hell with the fact that I just woke you up at 3:00am?
In fact, yes. This is not often done for various reasons -- few people are awake to knock anyway, it's rude so would be self-defeating commercially, but is known in exceptional circumstances such as travellers seeking to use a phone to call for aid or in dangerous weather -- but it's basically ok.
It's not trespassing, until the presumed invitation is withdrawn. And isolated incidents are hardly harassing; for that it'd need to be part of a campaign of harassment.
I feel you are preaching something you would not like practiced on you
So? We're essentially talking about freedom of speech issues. I strongly wish that no one would advocate Nazism. However, I support protecting it as a part of freedom of speech.
Personally I hate advertising more than most people. I wish it didn't exist at all, anywhere, save for basic factual responses to requests for information from prospective buyers. As such, I loathe not merely spam, or telemarketing, but also ads on TV, on the internet, billboards, in periodicals, non-generic product packaging, logos on clothes, etc.
But I think that due to my commitment to civil liberties, that I'll have to put up with it.
The fact that you have a front door means that you are inviting strangers to pound on your door.
Yes. That's why if you don't want door-to-door solicitors, it's up to you to put out a sign, or tell them not to come back. The default rule is that it's okay for people to come up to the door and ask to talk to you.
However, this doesn't mean you have to answer, or that you have to admit them. The presumption only goes far enough to let them ask.
Well, who said you were in the house, or awake, etc.?
Your basic premise is that just because I have a communication device that I should be subject to any invasion of privacy incurred via that device.
Nope. I'm saying that by having a phone, you have invited people to call you. You are not, however, required to accept calls, or to listen to a call any longer than you like. Only that, barring any special measures on your part, people are free to attempt to communicate with you.
btw: what is your cell number? I'm sure some people would love to use your own premise against you!
Again, I didn't say that you have to take calls, or ask to be called. Only that you are free to be called -- whether successfully or not.
The First Amendment was not aimed at giving private commerce the freedom to harass, unduly influence or attempt to deceive consumers.
So? Even if we accept that this is the proper interpretation of the First Amendment (and I have no desire to live in 1789), that doesn't mean that telemarketing is not allowed at all. It just means that there are bounds to unregulated telemarketing.
OK, there was also the minor reason that they worried that the constitution might not be ratified by the colonies if the Bills were included in the main body, but that was a secondary reason according to Jefferson and others
That's backwards. The concern was that the Constitution would not be ratified without the Bill of Rights, so it was promised that one would be drafted and promptly sent along to the states. Ratification of the Constitution was largely based on the belief that this promise would be upheld, as it ultimately was. (N.b. however that 2 of the 12 amendments in the proposed Bill of Rights did not pass at the time; one eventually did, becoming the 27th Amendment, and one still hasn't and likely never will) While it might have been possible to just put them directly into the Constitution, this would require the ratification process for that document to basically start all over again.
get rid of these fuzzy loopholes that serve companies more than they serve the individual
First, I totally do not believe that it is appropriate to refer to any part of the Bill of Rights that precludes governmental regulation or action from being a loophole. Stopping the government from doing certain things is the entire point of the document.
Second, commercial speech serves individuals well. Partially because they can engage in commerce as well as business entities. Partially because much of the point of corporations and the like is that they are treated as individuals apart from their investors and management, so as to insulate them, and thus encourage people to engage in the risks of commerce. And partially because when commercial speech is free, customers can use it to learn about goods and services in the marketplace and make informed choices about them; lack of information does not help buyers.
However- it would be considered legally harrassment for a politician to call us at 3 am
No, that's probably not harassing.
Call your ex girlfriend 30 times tommorow and see if the poilce show up at your door...
That's probably harassing.
Free speech is restricted.
Not nearly so much as you seem to think, and ideally virtually (or absolutely) not at all. Far better to have an absolute first amendment, I think, than to have a bunch of holes in it.
I am not paying to have someone else call me that I did not personally and explicitly invite to call.
So if your house were on fire, but you haven't "personally and explicitly [invited me] to call" I had better not do it, huh?
Don't be silly. You've hooked up to a worldwide communications network that traditionally has operated in an open manner and which continues to. You knew what you were doing. And the general presumption of openness is what's controlling, no matter how reclusive you might be personally.
Also unlisted numbers are so that they don't appear in the phone book; not so that people don't call you.
Ok so (a) just isn't a realistic open. (b) is practically useless because you are either (b1) dealing with too many unique callers to make this feasible, or (b2) have no way of notifying the callers. The problem with (c) is that either (c1) they won't comply with your request, or (c2) you have no way of notifying the callers.
I don't see what's unrealistic about a, but moving on, the DNC list is an attempt at pursuing the b option. The c option is easy enough to do -- when someone calls you, you can tell them right then and there to not call again. Of course that's a reaction, so you have to wait to be called.
As for callers that don't comply, presumably then you can take some sort of action against them.
And finally, to one of the parent's comments about freedom of speech-- this doesn't apply.
No, commercial telephone calls fall under the First Amendment. Commercial speech is subject to some regulation, but only some. You can't silence it completely. Political calls, religious calls, etc. don't even fall within that, and must be highly free from regulation.
Yeah, like a "No trespassing" sign, which is legally enforcable. Or a "Do not call" list.
A 'no trespassing' sign isn't a good solution, since people invited to enter aren't trespassers, and it's usually presumed that solicitors are invited to the front door. A more carefully tailored 'no solicitors' sign is better, IMO.
At any rate, the trick is that the sign must reasonably put the group of people it's addressed to on notice. For example, a sign that says 'no Avon ladies' is no good with regards to Fuller Brush men, and if it's not reasonably apparent, no good even against Avon ladies.
The FCC DNC list is inherently limited to only some sorts of callers. Using it isn't reasonable notice for, e.g. political calls, since the list only deals with commercial calls. One would imagine that a DNC list against political calls could exist, but probably couldn't be maintained by the government. The government is able to authoritatively say that the FCC DNC is reasonable. A private list would have to work to be reasonable, rather than getting a free ride.
And of course, even after all this, I wonder if it's a good idea for the government to be involved in supporting in any fashion (even recognizing effectiveness) such broad bans on communication.
Just because they have a right to talk, doesn't mean I *have* to listen. And by calling me, they are forcing me to do that. Even if it's just long enough for me to realize who they are and hang up on them.
You're right that you don't have to listen. But you're not being forced to. No one is holding a gun to your head, making you pick up the phone. You're doing that of your own free will.
Having a phone connected to the phone network is basically an invitation for people to call you. If you don't want people to call you, then your options are a) don't have a phone, b) provide reasonable notice in advance to those people you don't want to call you, or c) tell people who have called, not to call again.
It's just like how your address is an invitation for people to mail you, or come to your front door. You can keep people away, but it's up to you to take steps to do so. The default assumption is that communication is desired.
Slashdot Mirror
Sorry, but no. While 117 is generally inapplicable anyway, circumvention falls under 1201 et seq; 117 deals with infringement, which is not the same thing.
fansubbing is a gray area if it is anime that hasn't been licensed in the country you're living.
No it's not.
So, as I originally stated, a competitor marketing a competing product, in the same market under the same mark, is diluting the mark.
Well, while one could proceed under a dilution theory in those circumstances, that's something that's just tacked on to the real case, which would be about infringement.
Additionally, you seem to be forgetting that there are more prerequisites for dilution than merely "marketing a competing product in the same market."
There must be fame, which excludes the vast majority of marks. This means that there must be inherent and acquired distinctiveness, which excludes descriptive marks with acquired distinctiveness. The fame must extend to the persons in the market where dilution is claimed, e.g. Lexis (the legal research company) lost its dilution case against Lexus (the car company) because people in the car buying market don't usually know about legal research services.
There must be actual lessening of selling power of the purportedly diluted mark, which means you have to prove that it was the result of the dilution, as opposed to there being some other cause. Mere likelihood of dilution is insufficient.
And for all your trouble, if you can manage to win on the dilution theory, all you usually get is injunctive relief.
Infringement actions are easier to win, in the factual scenario you set forth, and provide damages as well. Dilution would probably be a waste of the client's money to argue if you can win on infringement. I'd be very hesitant to advise a client to do so.
And that's why when you see actual dilution cases, they're generally not about goods in the same market, using the same mark.
The remedies for dilution, however, include this: and
Which would seem to indicate that while there there need not be direct competition between marks (e.g. Coke the drink and Coke the dry cleaners), they do need to both be acting commercially in commerce, and so they would at least need to be in your 'noncompeting markets.' If the purported diluter is outside of the market, then there's no remedy, and they might as well not be a diluter at all as far as the famous mark holder is concerned.
Aside from the further clarifcation, what's your point?
The entire point of trademark (as encoded here in the US in the "Lanham Act") is to protect the consumer from mistaking one product for another with the same name ("mark dilution").
;)
No, you're confusing a couple of things here.
The point of trademarks is to avoid consumer confusion, but that's a part of trademark infringement.
Trademark dilution is when there is no confusion, and the marks are used in different areas of commerce (e.g. Coca-Cola soda and Coca-Cola Dry Cleaning Services). The idea behind dilution is that it is unfair to allow the notoriety of the more famous of the marks to be diluted by the less well-known mark, even though no one thinks that they're otherwise related or competing against one another.
Dilution is very new, and widely considered to be a very stupid idea. However, big business has managed to get antidilution laws on the books regardless.
At any rate, the reason why a mark holder needs to police his mark is to avoid losing it altogether. If others use it, then there is sufficient confusion that it no longer functions as a mark, and can be lost. And there may be sufficient loss of fame, that the junior mark supplants the senior in the minds of the public (e.g. if everyone did their dry cleaning at Coke, and forgot about the beverage).
But it's really more likely that a mark would become generic than usurped. (Though a non-famous mark is vulnerable to junior non-infringing users gaining fame)
What's wrong with the world is that 1> people trust lawyers (at all, certainly too much)
Well, I wouldn't agree with that at all. IMO what's wrong with the world is that there are entirely too few lawyers, and they're not getting paid nearly enough.
Well, you're assuming that we're not blocking the ads. I haven't had to put up with graphic ads for a while, and if Privoxy wasn't the world's biggest piece of shit, text ads would be gone too.
You kids these days. I remember when Max Headroom was only on Big Time Television.
No. A person having ordinary skill in the art is one who has a complete knowledge of the prior art, but virtually no imagination. The fact that two independent inventors came up with something doesn't mean that an equally skilled but unimaginative inventor would have.
Well it has to be used in commerce, and no one would argue that the MM mark isn't.
The issue is whether the expiration of a copyright (or patent) can cause certain associated trademarks to expire. And the answer is that they can.
A trademark has to indicate that a marked good or service originates from a specific source which maintains a given level of quality (regardless of whether the quality is good or bad). The 'Coke' trademark, for example, must indicate that one entity (the Coke company) makes all the goods with that mark, and maintains quality controls over it.
Additionally, the mark cannot be the generic term for the marked good or service (i.e. the Coke company cannot get a trademark for 'soda' or 'pop' or 'soft drink'), nor can the mark be merely descriptive of the good or service in question. This is because the public and competitors are entitled to use those words as well.
In the case of Mickey Mouse, if the character entered the copyright public domain, then anyone is entitled to create works with that character. A trademark is not a substitute for a copyright, after all. This means that now Disney cannot control the quality of copies of creative works (a sort of good) using the character. Furthermore, since the name 'Mickey Mouse' is the generic name for that character, the trademark has suffered genericide.
So yes, Disney's brand would not only be hurt, it would -- with regards to some of their marks, anyway -- be destroyed.
Of course, they could fight where there was infringement on the 'Disney' trademark, but this just means that people making their own Mickey Mouse works have to avoid confusing people as to the origin of them. It doesn't mean that they cannot use the character, or that they even have to change it. Rather, they just say something like 'Joe Smith's Mickey Mouse' instead of 'Disney's Mickey Mouse,' which is what Disney would have to start doing, if they don't already.
It's not like they would lose the exclusive right to Mickey Mouse himself as I'm sure Mickey is trademarked.
They would lose exclusive rights to the character, as the trademark is no substitute for the copyright, and cannot be used to stand in the way of people making copies and derivative works of public domain works. There is a similar doctrine in the patent field. What happens in fact is that the relevant trademarks die along with the copyright.
Some marks might still be viable. Peter Pan is a valid mark in peanut butter and bus lines. But where creative works are involved, there's no chance.
Well, the problem I have with them is this: Patents exist only to provide an additional encouragement to inventors to do certain things that they would not have done otherwise (i.e. invent, disclose, and market their novel and nonobvious useful inventions).
In many fields, the encouragement of merely being a competitor with others is insufficient, though it is worth noting that inventions don't stop being useful when their patents expire, and that the lack of a monopoly on an invention doesn't mean that you can't still make a handsome profit. Thus, the additional encouragement of a patent is of use to the public, which is who wants to see more useful, novel, and nonobvious inventions come about, who wants to see them disclosed so that anyone can reproduce them later, and who wants to see articles embodying the invention in the marketplace.
The software field is special, however. At least for right now, I think that there is so much inventive activity going on that patents simply could not stimulate more of it. Likewise, software embodying these inventions often hit the market. Disclosure is at times an issue -- though for some inventions, the specific details of their implementation are not of huge importance. However, I think that it's best addressed with additional copyright formalities, rather than granting patents.
In fact, not only do I believe that patents will offer no additional encouragement to software inventors, I think that the monopolies they embody, and the high costs of complying with them or licensing them, will in fact reduce the amount of inventive activity going on in this field.
The only reason software patents exist is that there is a belief amongst many in the patent field that patents should be granted for any sort of thing under the sun, made by man, if it satisfies the various requirements for a patent. This is ideological, basically. I OTOH think we should remember why we have patents at all, and thus should grant them, or not grant them, for particular fields according to pragmatic values. In some sectors of industry, patents are beneficial; in a few, such as software, they're not.
I don't think that merely varying the term length is a good solution. Better to just ban them for the software field (and business method field) for now, and only reinstitute them if those fields slow down and finally actually require the additional encouragement.
I'm guessing that you must be the oldest /. poster around, since there have been criminal penalties for some copyright infringement since 1897. It's a dumb idea, but it's not new.
What I do not understand, why nobody comes up with an mp3 player that lends music, i.e., the original source is not able to play that one song, while another person listens to it.
It wouldn't matter. Computers make copies of data all the time -- it's how they're built. And that can trigger infringement, regardless of whether or not multiple copies can be used simultaneously.
it is legal to lend your CD to other people (e.g., friends).
Not as legal as you think it is.
DOWNLOADING is perfectly legal. Unless, in your jurisdiction, there is material which is deemed illegal.
Of course, unauthorized downloading of copyrighted works necessarily involves reproducing a work into a new copy, and that usually infringes on the reproduction right of copyright.
There's really no good reason for a game to be released in the USA, and then wait months before releasing it in the UK.
Oh, I'm sure that localizing software from the US to the UK is a time-intensive process, requiring careful attention by the translators.
The premise that merely by having a phone I've automatically invited people to call is seriouly flawed. Using the same logic, by having a car, you are inviting people to ride in it? Take it for a drive? Steal it? Where is the line drawn?
Social custom, probably.
A phone is a communications device, and is ordinarily used to talk to people without prior permission. Not so for your purely silly attempts to extend this to cars and such.
I mean, it does have a door. Now, you don't have to answer it, however, I have the right to knock on it any time of the day or night, disturbing your existence, at will, and to hell with the fact that I just woke you up at 3:00am?
In fact, yes. This is not often done for various reasons -- few people are awake to knock anyway, it's rude so would be self-defeating commercially, but is known in exceptional circumstances such as travellers seeking to use a phone to call for aid or in dangerous weather -- but it's basically ok.
It's not trespassing, until the presumed invitation is withdrawn. And isolated incidents are hardly harassing; for that it'd need to be part of a campaign of harassment.
I feel you are preaching something you would not like practiced on you
So? We're essentially talking about freedom of speech issues. I strongly wish that no one would advocate Nazism. However, I support protecting it as a part of freedom of speech.
Personally I hate advertising more than most people. I wish it didn't exist at all, anywhere, save for basic factual responses to requests for information from prospective buyers. As such, I loathe not merely spam, or telemarketing, but also ads on TV, on the internet, billboards, in periodicals, non-generic product packaging, logos on clothes, etc.
But I think that due to my commitment to civil liberties, that I'll have to put up with it.
The fact that you have a front door means that you are inviting strangers to pound on your door.
Yes. That's why if you don't want door-to-door solicitors, it's up to you to put out a sign, or tell them not to come back. The default rule is that it's okay for people to come up to the door and ask to talk to you.
However, this doesn't mean you have to answer, or that you have to admit them. The presumption only goes far enough to let them ask.
Well, who said you were in the house, or awake, etc.?
Your basic premise is that just because I have a communication device that I should be subject to any invasion of privacy incurred via that device.
Nope. I'm saying that by having a phone, you have invited people to call you. You are not, however, required to accept calls, or to listen to a call any longer than you like. Only that, barring any special measures on your part, people are free to attempt to communicate with you.
btw: what is your cell number? I'm sure some people would love to use your own premise against you!
Again, I didn't say that you have to take calls, or ask to be called. Only that you are free to be called -- whether successfully or not.
The First Amendment was not aimed at giving private commerce the freedom to harass, unduly influence or attempt to deceive consumers.
So? Even if we accept that this is the proper interpretation of the First Amendment (and I have no desire to live in 1789), that doesn't mean that telemarketing is not allowed at all. It just means that there are bounds to unregulated telemarketing.
OK, there was also the minor reason that they worried that the constitution might not be ratified by the colonies if the Bills were included in the main body, but that was a secondary reason according to Jefferson and others
That's backwards. The concern was that the Constitution would not be ratified without the Bill of Rights, so it was promised that one would be drafted and promptly sent along to the states. Ratification of the Constitution was largely based on the belief that this promise would be upheld, as it ultimately was. (N.b. however that 2 of the 12 amendments in the proposed Bill of Rights did not pass at the time; one eventually did, becoming the 27th Amendment, and one still hasn't and likely never will) While it might have been possible to just put them directly into the Constitution, this would require the ratification process for that document to basically start all over again.
get rid of these fuzzy loopholes that serve companies more than they serve the individual
First, I totally do not believe that it is appropriate to refer to any part of the Bill of Rights that precludes governmental regulation or action from being a loophole. Stopping the government from doing certain things is the entire point of the document.
Second, commercial speech serves individuals well. Partially because they can engage in commerce as well as business entities. Partially because much of the point of corporations and the like is that they are treated as individuals apart from their investors and management, so as to insulate them, and thus encourage people to engage in the risks of commerce. And partially because when commercial speech is free, customers can use it to learn about goods and services in the marketplace and make informed choices about them; lack of information does not help buyers.
However- it would be considered legally harrassment for a politician to call us at 3 am
No, that's probably not harassing.
Call your ex girlfriend 30 times tommorow and see if the poilce show up at your door...
That's probably harassing.
Free speech is restricted.
Not nearly so much as you seem to think, and ideally virtually (or absolutely) not at all. Far better to have an absolute first amendment, I think, than to have a bunch of holes in it.
I am not paying to have someone else call me that I did not personally and explicitly invite to call.
So if your house were on fire, but you haven't "personally and explicitly [invited me] to call" I had better not do it, huh?
Don't be silly. You've hooked up to a worldwide communications network that traditionally has operated in an open manner and which continues to. You knew what you were doing. And the general presumption of openness is what's controlling, no matter how reclusive you might be personally.
Also unlisted numbers are so that they don't appear in the phone book; not so that people don't call you.
Ok so (a) just isn't a realistic open. (b) is practically useless because you are either (b1) dealing with too many unique callers to make this feasible, or (b2) have no way of notifying the callers. The problem with (c) is that either (c1) they won't comply with your request, or (c2) you have no way of notifying the callers.
I don't see what's unrealistic about a, but moving on, the DNC list is an attempt at pursuing the b option. The c option is easy enough to do -- when someone calls you, you can tell them right then and there to not call again. Of course that's a reaction, so you have to wait to be called.
As for callers that don't comply, presumably then you can take some sort of action against them.
And finally, to one of the parent's comments about freedom of speech-- this doesn't apply.
No, commercial telephone calls fall under the First Amendment. Commercial speech is subject to some regulation, but only some. You can't silence it completely. Political calls, religious calls, etc. don't even fall within that, and must be highly free from regulation.
Yeah, like a "No trespassing" sign, which is legally enforcable. Or a "Do not call" list.
A 'no trespassing' sign isn't a good solution, since people invited to enter aren't trespassers, and it's usually presumed that solicitors are invited to the front door. A more carefully tailored 'no solicitors' sign is better, IMO.
At any rate, the trick is that the sign must reasonably put the group of people it's addressed to on notice. For example, a sign that says 'no Avon ladies' is no good with regards to Fuller Brush men, and if it's not reasonably apparent, no good even against Avon ladies.
The FCC DNC list is inherently limited to only some sorts of callers. Using it isn't reasonable notice for, e.g. political calls, since the list only deals with commercial calls. One would imagine that a DNC list against political calls could exist, but probably couldn't be maintained by the government. The government is able to authoritatively say that the FCC DNC is reasonable. A private list would have to work to be reasonable, rather than getting a free ride.
And of course, even after all this, I wonder if it's a good idea for the government to be involved in supporting in any fashion (even recognizing effectiveness) such broad bans on communication.
Just because they have a right to talk, doesn't mean I *have* to listen. And by calling me, they are forcing me to do that. Even if it's just long enough for me to realize who they are and hang up on them.
You're right that you don't have to listen. But you're not being forced to. No one is holding a gun to your head, making you pick up the phone. You're doing that of your own free will.
Having a phone connected to the phone network is basically an invitation for people to call you. If you don't want people to call you, then your options are a) don't have a phone, b) provide reasonable notice in advance to those people you don't want to call you, or c) tell people who have called, not to call again.
It's just like how your address is an invitation for people to mail you, or come to your front door. You can keep people away, but it's up to you to take steps to do so. The default assumption is that communication is desired.