Well, Central Hudson is THE standard-setting case in the realm of commercial speech.
My personal favorite field of law is copyright law, and the same type of thing happens there; if you're talking about fair use, you WILL refer back to the Sony v. Universal case. There have been later cases dealing with the subject, clarifying it for example, but none so important.
Lately I've been looking over cases involving the admittance of hearsay in criminal cases contrary to a literal reading of the Sixth Amendment (i.e. the issue of admitting hearsay evidence because the person who is the actual witness is unavailable for confrontation in court by the defendant) and there THE case is Ohio v. Roberts.
If you had a case on abortion, you will cite Roe. If you had a case on privacy, you will cite Griswold. If you're discussing nonobviousness in a patent case, you're going to cite Graham. If the issue is one of personal jurisdiction for non-present defendants, you're going to cite International Shoe.
So given that Central Hudson is the primary case involving commercial speech, it was decided by the Supreme Court, it has never been overturned by the Court, and it has a handy quote -- why the hell would I _not_ refer back to it? I'm not going to tie one hand behind my back when it comes to defending the First Amendment. Even when I don't like the people that are employing it.
Are you saying you have a superior (in the sense that it overrides Central Hudson) opinion that helps your argument, whatever it might be? If so -- let's have it.
The earlier poster said: The ONLY reason advertising is allowed is because we, as a society, permit it. It has nothing to do with some absolute concept of "free speech" that doesn't exist in any country I've ever heard of.
I said, and the Supreme Court said, that he's wrong. If you're going to say different, then let's see what you base that upon.
Are you claiming to be a lawyer now?
Nope. Didn't you see the.sig? I don't get out for another month and a half, the bar isn't until the end of February, and results will take some time to come in after that. Hopefully by late spring or so. (knock on wood)
You can't walk up to a 5 year old and start swearing at the top of your lungs
Actually, yes you can.
or tell every woman you meet that you'll be raping her later tonight.
Again, you can, though since rape is criminal, a significant factor will be whether you meant it, and whether they think you mean it. If there were no real likelihood of a threat (e.g. you're just some schmuck with Tourette's) then it's not regulable.
I think you should really read the famous case of Cohen v. California, 403 US 15 (1971), and probably Brandenberg v. Ohio, 395 US 444 (1969).
The ONLY reason advertising is allowed is because we, as a society, permit it. It has nothing to do with some absolute concept of "free speech" that doesn't exist in any country I've ever heard of.
Well, then listen up:
The First Amendment... protects commercial speech from unwarranted governmental regulation. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication rather than to close them. . .." Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all.
That was the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980).
I'm beginning to wonder if you know anything about First Amendment law whatsoever.
If you use blockers to remove banners from content it is costing someone else money to produce and deliver to you, it is not the advertising that is a parasite. You are the parasite.
So what? They knew that this was a risk when they put the content up this way. No one EVER said that advertising was a good, or sustainable, or profitable thing. They took a risk, and if it isn't working then things will ultimately settle out to a level where they do work. That's fine. That's great. That's the natural order of things -- because businesses must cope or fail in accordance with the reality of the situation.
Propping up advertising by tolerating it when you don't want to is a terrible idea, and turns the businesses into parasites that are feeding on you.
Me, I filter every ad I come across. Banners, pop ups, pop unders, flash, text ads, annoying logos -- everything. I just wish that I could filter my perceptions so that I could look at a billboard and see nothing at all, or maybe a work of fine art. Something like 'They Live' glasses would be a start.
Well, first, the US didn't bother with the Berne Convention -- which is utter crap, by the way, and which no one should abide by -- until quite recently. We did wisely reject the damn thing for nearly a century, and the sky didn't fall. It's not important.
But second, this is the US we're talking about. While it might not seem very fair, we do have enough muscle to get our way; if we ever had the balls to undertake a sea change in copyright law here, who's going to stop us? Most of the copyrighted works we like here are domestic, but we export them to every corner of the world. We're in a unique position to ignore the rest of the world, and possibly even help to fix the mess that the Europeans (and more recently us) have made of things.
Of course, I personally don't believe international copyright agreements are a good idea to begin with. If foreign authors want a copyright in force in the US, all they have to do is comply with our requirements; it's not like the 19th century, when we didn't grant copyrights to foreigners. If other countries require local registrations with them, then that's fine too. Every nation should develop whatever copyright laws best suit itself -- there is no one size fits all scheme of copyright law.
We can of course forbid copyrights to offenders that try to game the system. I think we ought to.
Either works are primarily available to the general public for sale at reasonable prices given all the circumstances (the determination will involve judges and juries, surely, but norms will likely emerge), or they are not protected by copyright. This is a rough form of one of the proposals I have for copyright reform.
Basically, I don't truck with assholes that try to game the system -- copyright demands permanent public control over copies of the work, and I hope to destroy anyone that tries to prevent it.
What should copyright not apply to? Software? I'm not sure why.
Still, your argument might be fairly interesting, so I'd like it if you could clarify it, and maybe develop it somewhat further so that it's easier to make a meaningful response.
The problem is this. Machines are amazingly fucking stupid. I cannot overemphasize the degree to which machines are worthless at regulating human activity.
So what if my personal use involves copying to four machines. The use is ENTIRELY as legitimate and personal as if it were three machines. Yet, because the machine cannot be reasoned with, because it cannot provide for any slack other than what is predetermined (and inevitably wrong), it will fuck up. It will have denied a personal use because in fact machines are NOT CAPABLE of determining what a personal use is. A human judge can do this lickety-split. A computer cannot do it.
I would rather trust to judges to make these decisions when there is some contention in a specific case, than to machines.
why should we be able to record creations other people have done if they don't want us to?
Fundementally, because we don't give a rat's ass about what they want.
Before you discount this answer, please let me explain. Our copyright system is founded on utilitarian principles. The idea is that copyright should satisfy the public -- specifically the public's interest in the promotion of learning -- as much as possible, while causing as little harm as possible in the process.
If the public decides, through our representation in Congress, that we would be happier with more copyright protection, then we should have more. If we decide that we would be happier with less, then we should have less. Again, we're aiming for whatever makes the public the happiest, accounting for the unhappy costs of achieving that.
What makes the public happy? Basically two things. The first is the creation of works, whether those works are original or derivative. The second is free reign to enjoy those works; to use them, keep them, copy them, change them, distribute them, acquire them for no cost, etc.
In practice, the two different ways that we can pursue happiness are somewhat exclusive. The way that we promote the creation of original works is to limit the ability of others to enjoy those works or to create derivatives based on those works.
That is okay if the public is left better off by sacrificing some of its enjoyment of works and the creation of derivatives, because so many more original works are created that we're overcompensated for what we gave up.
It's not okay if we are paying too much in terms of our freedom in works that are created, because we don't get enough original works created to make up for it.
Thus, returning to my original point, if the public would be better off by permitting unfettered recording of broadcast TV shows, even taking into account the possibility that fewer works would be created, then we ought to do it.
What the artist wants is irrelevant, with two exceptions. One, the artist is a member of the public at large, but not a very significant one. Two, the artist can refuse to create works if he doesn't believe that copyright favors him sufficiently.
However, as we've already discovered by looking at public utility, some artists will demand too much. They will demand more than their original works that they would otherwise create are really worth to us. It is unfortunate to lose them, but if we're all left better off without them (because we have more freedom) than with them (and little freedom), then it's what we've got to do.
A rough analogy would be, if someone would without question provide for your needs and maintain you in comfort for the rest of your life, would it be worth it to you if you had to be their slave? Would you value your freedom even with the warts of having to be self-sufficient, more than a luxurious life in which you aren't allowed to make a single decision for yourself, and are property?
I don't mean to compare the situation of TV viewers to slaves, but my point is simply that sometimes the best thing you can do will nevertheless not be as nice in certain respects as other, worse, options. So you must look at the net result of the good and the bad, to decide which option is OVERALL better.
Here on Slashdot people keep insisting that GPL is in harmony with copyright law, basically saying that you should be able to dictate how people are allowed to redistribute your works. And the next day, same people line up on barricades to stop unnecessary copying/distribution restrictions imposed by the creators of digital broadcast content!
Well, no one ever actually said that there has to be consistency. Though if you dig deeper, I think you'll find that the two positions are perfectly reconcilable -- in that no one is bound by the GPL unless they volunteer to be, and that they are gaining an advantage (not redistribution, but initial distribution, and reproduction and d
Well, aside from your example not quite working (the GPL doesn't apply to use), I at any rate would limit the right of copyright holders to restrict the future disposition of their work or copies thereof in some circumstances.
Namely, I would prohibit licensing to prevent non-infringing activities.
Thus, for example, licenses to prohibit copying TV shows where such copying was fair use, would be void. OTOH, licenses to prohibit putting the TV shows on P2P networks would be breeched, since that activity is infringing. Of course, such a license would be pointless, as that activity is already illegal. Licenses to permit the putting of TV shows on P2P networks would be entirely permissible, however.
Licenses to regulate the use of computer software (EULAs) would be void, since 17 USC 117 permits incidental copying and backups with regards to software that one owns (and w/o the license, there would absolutely be ownership of copies, no argument), and using it is not subject to a right of the copyright holder. However, a license to make non-incidental, non-backup copies, to make derivatives, and to distribute copies, that would be a permissible license, since you can't otherwise do that for copyrighted software w/o authorization.
I'm sure my proposal could stand a bit of work, but what's your general opinion?
Well, mediums of communication pretty uniformly work this way. Otherwise communication would be utterly impractical.
You consent for mail to come into your mailbox, but you can take action to affirmatively stop it. You consent for people to cross your property to come and talk to you, but you can order them to leave or put up signs telling them not to even try. Phones are yet another example; if you're connected to the phone network, society presumes it's because you want to make AND receive calls. It's up to you to rebut this presumption.
A car isn't a proper analogy, since a car is not a medium through which people communicate with you.
I guess that's another opinion that depends on what you believe constitutes harm. When my blood pressure goes up, that's harm.
It's not judicially cognizable harm; it's not harm that justifies taking such a large bite out of the First Amendment. It is insignificant harm, and it is not worth having laws in place to prevent against it. Sometimes you've just got to suck these things up.
And of course, it is NOT harm to be offended, even if you think it is. See the famous Cohen case in which it was held to be legal to wear a jacket that said 'fuck the draft' even though this would surely offend people of delicate sensibilities. Essentially, those people live in the real world, and unless they want to cloister themselves, they're going to have to accept the fact that not everything is sanitized for their protection.
You, I suspect, are in the same boat.
In case you hadn't noticed, there are also laws against disrupting the peace because it is annoying.
But there are no laws against speech generally because it is annoying. And frankly, I'd disagree with what it takes to disturb the peace, as well.
You might be able to use annoyance to channel speech -- require calls to only come in during reasonable hours, for example. You could never use this to get rid of it altogether or place any serious burdens on it, such as forcing advertising to use a wholly different medium of expression.
I don't have a right to come to your house every morning at 2 AM and pound on your door until you answer it, although it does not cost you anything - I'd wind up in jail.
And yet, if you do the same thing six hours later, there's no problem. It might still be annoying you, though. Annoyance is simply not a significant factor -- if it is one at all -- in this discusion. I suggest that you find a better basis for your argument.
This is true. HOWEVER telemarketers are not trespassers. It is implicit in the mere fact of having phone service that you are willing to be called. If you don't want to be called, you can of course rebut this presumption by the simple and easy method of a) telling specific people not to call, b) telling the world or some subset not to call by virtue of appropriate notice that the affected classes are or reasonably should be aware of in advance, or some combination of a & b.
One form of notice would be the DNC list.
But if the recipient of the call is too lazy, he has no argument against unwanted calls that he's received, since merely by having the ability to take calls, he is assumed to have consented to receive them.
Same reason why it's not trespassing for someone to go onto your property and ask you if you've found Jesus, and if you have to please return him; you have automatically agreed to allow them to do that, unless you specifically refuse them that right.
Well, to clarify my position, I support the DNC, and I also support requiring telemarketers (and spammers) to honor individual requests to not call.
I have no problem with people taking legal action against those that violate these things. But there has to be some affirmative action by the recipients; I don't support a total ban on telemarketing or spam, assuming that they're otherwise legal.
If you know within a fraction of a second, then _that's_ the time that was wasted. From that point on, you have the power to unilaterally end the conversation by hanging up. If you stay on the line, they can't make you, so why should they be responsible for it?
I agree that if you tell someone to hang up they should, and that if you tell them to never call back again, they should respect that. I don't have serious objections to perhaps even making this legally enforcable, though I'm not convinced that the former is entirely wise.
But that's not the scenario that's generally being discussed; what people are discussing is that they feel that the mere fact that they receive a call is directly materially harmful to them. I can't agree with that.
That is certainly a matter of opinion as well as degree.
It's pennies. At MOST.
Specifically what the Supreme Court said, in regards to junk mail, which takes time to sort and throw out, was this:
Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Bolger v. Youngs Drug Products Corp., 463 US 60 (1983) (internal citations omitted)
It probably takes me, eh, a minute to sort through junk mail and get to a convenient trash can into which I can throw it out. But I can hang up on a telemarketer in two or three seconds.
I do not pay for phone service so shady, inconsiderate companies can disturb my peace with high-pressure sales calls.
Exactly. They're NOT HARMING you. They're just annoying you.
Some things in life, you are going to have to suck up, my friend. This is likely one of them, though I encourage you to use DNC lists, opt out, etc.
But there are certainly worse offenders out there using their freedom of speech -- the Klan, for example. If we have such a strong committment to free speech that we are going to allow such a hateful bunch of assholes the right to speak freely, then I see no reason why a call that you can pretty much instantly hang up on is so much worse that we have to regulate it.
I hate all advertising, everywhere, with 1 kilosol* but I'm prepared to live with the fact that it is one of those unfortunate consequences of living in a free society. It's one of those 'I may disagree with what you say, but fight to the death to defend your right to say it' sorts of things.
* 1 kilosol = the burning passion of a thousand suns
Yes -- that doesn't change that the burden is on the person seeking the restriction. The limits on commercial speech have nothing to do with a cost analysis. They have to do with whether the message is misleading, deceptive, is related to illegal activity, etc. See the Central Hudson and 44 Liquormart cases.
They're calling during reasonable business hours. How should they know that you have an uncommon sleep cycle? You haven't told them!
I wouldn't punish them for that. Then we'd end up reducing speech to a lowest common denominator (e.g. junk mail) and that's not acceptable, much in the way that the Internet cannot be forcibly cleared of pornography and objectionable material to make it safe for the tender eyes of children.
As for the DNC list, it doesn't cause telemarketers to coordinate their calls so that they are made in a manner intended to harass you. The DNC list is the equivalent of a 'no solicitors' sign. It's advance notice not to call, and should be respected just as equally as if you told a telemarketer that actually does call to not call again.
Obviously, telemarketers don't like that, but I would agree that they do have the right to bother anyone with a phone number, within certain limits (e.g. no fraud), unless the person with the phone has opted out specifically by telling off specific telemarketers, or generally by going on the DNC list.
Maybe, though I'm doubtful. You'd have to show that for people who did have only basic phone service (people who already had a solution already can schedule for convenience) that it was an unacceptable burden though. That is, the onus of proof is on the person seeking to regulate speech, and mere handwaving and arguments won't be enough. There would need to be a study, and real costs would have to be ascertained.
Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Bolger v. Youngs Drug Products Corp., 463 US 60 (1983) (internal citations omitted)
I would expect that the same holds true for phone calls. You can avoid a telemarketing call by hanging up. Thus, the time spent between picking up the phone and hanging it up is a burden on your time that you'll have to put up with. It's not so big a deal that it would be constitutional to ban speech on account of it.
Were you called so often that it was harassing, then you might have a case. BUT this would likely require the same telemarketers to keep calling you. Different telemarketers that hadn't coordinated with one another surely can't be liable if they coincidentally happen to call you one right after the other.
Does the cost of your phone service vary depending on the volume of calls you receive? That is, if no one called you at all, would the bill be lower, and if everyone called you (b/c your number is 867-5309 or something) would it be really high?
If your bill only reflects charges for being connected to the network, and outgoing calls, then you suffer no economic harm from receiving calls. And note that whether you do suffer harm from recieving calls will depend on more than the mere fact (were it to be the case) that there's a charge -- then the charges would have to be shown to be material; minor charges aren't important enough to warrant a restriction on speech.
The Supreme Court did nothing at all to the Nike case. It settled out of court -- i.e. a mutual agreement was reached by the parties, who dropped the case.
Speech that leads directly to physical harm, such as the classic "yelling, 'Fire!' in a crowded theater" is not protected.
You're wrong about this in several ways. They're the typical ways that people fuck up when they use the fire example, and it is precisely why I HATE the fire example.
The CORRECT EXAMPLE is essentially 'yelling 'fire' falsely in a crowded theater and causing a panic.' If there IS a fire, regardless of who's hurt, we want you to yell. Thus, there has to be a combination of an intent to harm, and a reasonable likelihood that the speech will lead to the harm. If you lack intent (because there is a fire, and you really want everyone to escape safely) you're off the hook. If there is no likelihood of harm (because the theater is empty, or it's part of the play, or theaters are not the deathtraps that they were in 1919) then you haven't done anything wrong.
At any rate, the case that provides the fire example is no longer good law. It has been replaced by Brandenberg, and I suggest you read it.
Speech that somehow violates your property rights, such as political or religious campaigning on your doorstep or in your house is not protected.
This is not precisely true. If you don't state otherwise, you are deemed to implicitly permit people to use your property to a limited extent to contact you, vis a vis crossing your property to go to your front door and ring the bell. This is a consequence of living in society.
If you don't want door to door solicitors, it is YOUR problem to either tell them to never return, or to put up notice that solicitors are reasonably likely to be aware of inadvance, such as a sign.
But there generally cannot be laws prohibiting door to door solicitation, as might be the case were it not protected speech. Instead it's up to the individuals being solicited, and the government cannot make this decision for them.
For many years, neither was commercial speech in many ways
That's as stupid a statement as saying that for many years slavery was illegal. It's true, but it was so long ago that it is irrelevant. There are commercial speech cases dating back to the 40's IIRC that commercial speech is protected, and the only remaining question is how protected; for the past 20 years or so, it's been 'pretty damn well protected.'
Telemarketing is a hindrance to the consumer - it requires the user to pay for the telephone use - and it invades upon their personal time - at the company's discretion.
The cost to the user is so low, in time and money, as to not be worth considering. It is just like the cost that it takes to sort out junk mail from real mail, and to throw that junk mail away -- a burden that the Supreme Court has found recipients are stuck having to bear, and which you yourself don't have a problem with.
Yes, but it's allowed because they've been harassing you, and that's a high hurdle. You couldn't get a restraining order on a mere annoyance. Most telemarketing calls are the latter, not the former, IME. The free speech issue is a very important one, and if free speech means anything to us, we've got to take it seriously, even if we ultimately decide that there's no violation.
We're talking about phones -- you don't bear any significant costs from receiving a call.
What you really mean must be, 'what right does another have to send me messages I do not want?'
And this depends. Do they know you don't want them, or would they have to assume that despite having no evidence? If they know -- because you've told them not to call, or you've put up proper notice such as joining the DNC list, then I think you might have a point. But telemarketers aren't psychic, so it is not reasonable to expect them to know not to call you unless you've done _something_ to indicate to them (specifically or generally) that you don't want more calls.
Slashdot Mirror
Well, Central Hudson is THE standard-setting case in the realm of commercial speech.
.sig? I don't get out for another month and a half, the bar isn't until the end of February, and results will take some time to come in after that. Hopefully by late spring or so. (knock on wood)
My personal favorite field of law is copyright law, and the same type of thing happens there; if you're talking about fair use, you WILL refer back to the Sony v. Universal case. There have been later cases dealing with the subject, clarifying it for example, but none so important.
Lately I've been looking over cases involving the admittance of hearsay in criminal cases contrary to a literal reading of the Sixth Amendment (i.e. the issue of admitting hearsay evidence because the person who is the actual witness is unavailable for confrontation in court by the defendant) and there THE case is Ohio v. Roberts.
If you had a case on abortion, you will cite Roe. If you had a case on privacy, you will cite Griswold. If you're discussing nonobviousness in a patent case, you're going to cite Graham. If the issue is one of personal jurisdiction for non-present defendants, you're going to cite International Shoe.
So given that Central Hudson is the primary case involving commercial speech, it was decided by the Supreme Court, it has never been overturned by the Court, and it has a handy quote -- why the hell would I _not_ refer back to it? I'm not going to tie one hand behind my back when it comes to defending the First Amendment. Even when I don't like the people that are employing it.
Are you saying you have a superior (in the sense that it overrides Central Hudson) opinion that helps your argument, whatever it might be? If so -- let's have it.
The earlier poster said: The ONLY reason advertising is allowed is because we, as a society, permit it. It has nothing to do with some absolute concept of "free speech" that doesn't exist in any country I've ever heard of.
I said, and the Supreme Court said, that he's wrong. If you're going to say different, then let's see what you base that upon.
Are you claiming to be a lawyer now?
Nope. Didn't you see the
You can't walk up to a 5 year old and start swearing at the top of your lungs
... protects commercial speech from unwarranted governmental regulation. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication rather than to close them. . . ." Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all.
Actually, yes you can.
or tell every woman you meet that you'll be raping her later tonight.
Again, you can, though since rape is criminal, a significant factor will be whether you meant it, and whether they think you mean it. If there were no real likelihood of a threat (e.g. you're just some schmuck with Tourette's) then it's not regulable.
I think you should really read the famous case of Cohen v. California, 403 US 15 (1971), and probably Brandenberg v. Ohio, 395 US 444 (1969).
The ONLY reason advertising is allowed is because we, as a society, permit it. It has nothing to do with some absolute concept of "free speech" that doesn't exist in any country I've ever heard of.
Well, then listen up:
The First Amendment
That was the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980).
I'm beginning to wonder if you know anything about First Amendment law whatsoever.
If you use blockers to remove banners from content it is costing someone else money to produce and deliver to you, it is not the advertising that is a parasite. You are the parasite.
So what? They knew that this was a risk when they put the content up this way. No one EVER said that advertising was a good, or sustainable, or profitable thing. They took a risk, and if it isn't working then things will ultimately settle out to a level where they do work. That's fine. That's great. That's the natural order of things -- because businesses must cope or fail in accordance with the reality of the situation.
Propping up advertising by tolerating it when you don't want to is a terrible idea, and turns the businesses into parasites that are feeding on you.
Me, I filter every ad I come across. Banners, pop ups, pop unders, flash, text ads, annoying logos -- everything. I just wish that I could filter my perceptions so that I could look at a billboard and see nothing at all, or maybe a work of fine art. Something like 'They Live' glasses would be a start.
Huh. I don't believe there is a right direction. I filter Google's ads too.
Well, first, the US didn't bother with the Berne Convention -- which is utter crap, by the way, and which no one should abide by -- until quite recently. We did wisely reject the damn thing for nearly a century, and the sky didn't fall. It's not important.
But second, this is the US we're talking about. While it might not seem very fair, we do have enough muscle to get our way; if we ever had the balls to undertake a sea change in copyright law here, who's going to stop us? Most of the copyrighted works we like here are domestic, but we export them to every corner of the world. We're in a unique position to ignore the rest of the world, and possibly even help to fix the mess that the Europeans (and more recently us) have made of things.
Of course, I personally don't believe international copyright agreements are a good idea to begin with. If foreign authors want a copyright in force in the US, all they have to do is comply with our requirements; it's not like the 19th century, when we didn't grant copyrights to foreigners. If other countries require local registrations with them, then that's fine too. Every nation should develop whatever copyright laws best suit itself -- there is no one size fits all scheme of copyright law.
We can of course forbid copyrights to offenders that try to game the system. I think we ought to.
Either works are primarily available to the general public for sale at reasonable prices given all the circumstances (the determination will involve judges and juries, surely, but norms will likely emerge), or they are not protected by copyright. This is a rough form of one of the proposals I have for copyright reform.
Basically, I don't truck with assholes that try to game the system -- copyright demands permanent public control over copies of the work, and I hope to destroy anyone that tries to prevent it.
What should copyright not apply to? Software? I'm not sure why.
Still, your argument might be fairly interesting, so I'd like it if you could clarify it, and maybe develop it somewhat further so that it's easier to make a meaningful response.
The problem is this. Machines are amazingly fucking stupid. I cannot overemphasize the degree to which machines are worthless at regulating human activity.
So what if my personal use involves copying to four machines. The use is ENTIRELY as legitimate and personal as if it were three machines. Yet, because the machine cannot be reasoned with, because it cannot provide for any slack other than what is predetermined (and inevitably wrong), it will fuck up. It will have denied a personal use because in fact machines are NOT CAPABLE of determining what a personal use is. A human judge can do this lickety-split. A computer cannot do it.
I would rather trust to judges to make these decisions when there is some contention in a specific case, than to machines.
why should we be able to record creations other people have done if they don't want us to?
Fundementally, because we don't give a rat's ass about what they want.
Before you discount this answer, please let me explain. Our copyright system is founded on utilitarian principles. The idea is that copyright should satisfy the public -- specifically the public's interest in the promotion of learning -- as much as possible, while causing as little harm as possible in the process.
If the public decides, through our representation in Congress, that we would be happier with more copyright protection, then we should have more. If we decide that we would be happier with less, then we should have less. Again, we're aiming for whatever makes the public the happiest, accounting for the unhappy costs of achieving that.
What makes the public happy? Basically two things. The first is the creation of works, whether those works are original or derivative. The second is free reign to enjoy those works; to use them, keep them, copy them, change them, distribute them, acquire them for no cost, etc.
In practice, the two different ways that we can pursue happiness are somewhat exclusive. The way that we promote the creation of original works is to limit the ability of others to enjoy those works or to create derivatives based on those works.
That is okay if the public is left better off by sacrificing some of its enjoyment of works and the creation of derivatives, because so many more original works are created that we're overcompensated for what we gave up.
It's not okay if we are paying too much in terms of our freedom in works that are created, because we don't get enough original works created to make up for it.
Thus, returning to my original point, if the public would be better off by permitting unfettered recording of broadcast TV shows, even taking into account the possibility that fewer works would be created, then we ought to do it.
What the artist wants is irrelevant, with two exceptions. One, the artist is a member of the public at large, but not a very significant one. Two, the artist can refuse to create works if he doesn't believe that copyright favors him sufficiently.
However, as we've already discovered by looking at public utility, some artists will demand too much. They will demand more than their original works that they would otherwise create are really worth to us. It is unfortunate to lose them, but if we're all left better off without them (because we have more freedom) than with them (and little freedom), then it's what we've got to do.
A rough analogy would be, if someone would without question provide for your needs and maintain you in comfort for the rest of your life, would it be worth it to you if you had to be their slave? Would you value your freedom even with the warts of having to be self-sufficient, more than a luxurious life in which you aren't allowed to make a single decision for yourself, and are property?
I don't mean to compare the situation of TV viewers to slaves, but my point is simply that sometimes the best thing you can do will nevertheless not be as nice in certain respects as other, worse, options. So you must look at the net result of the good and the bad, to decide which option is OVERALL better.
Here on Slashdot people keep insisting that GPL is in harmony with copyright law, basically saying that you should be able to dictate how people are allowed to redistribute your works.
And the next day, same people line up on barricades to stop unnecessary copying/distribution restrictions imposed by the creators of digital broadcast content!
Well, no one ever actually said that there has to be consistency. Though if you dig deeper, I think you'll find that the two positions are perfectly reconcilable -- in that no one is bound by the GPL unless they volunteer to be, and that they are gaining an advantage (not redistribution, but initial distribution, and reproduction and d
Well, aside from your example not quite working (the GPL doesn't apply to use), I at any rate would limit the right of copyright holders to restrict the future disposition of their work or copies thereof in some circumstances.
Namely, I would prohibit licensing to prevent non-infringing activities.
Thus, for example, licenses to prohibit copying TV shows where such copying was fair use, would be void. OTOH, licenses to prohibit putting the TV shows on P2P networks would be breeched, since that activity is infringing. Of course, such a license would be pointless, as that activity is already illegal. Licenses to permit the putting of TV shows on P2P networks would be entirely permissible, however.
Licenses to regulate the use of computer software (EULAs) would be void, since 17 USC 117 permits incidental copying and backups with regards to software that one owns (and w/o the license, there would absolutely be ownership of copies, no argument), and using it is not subject to a right of the copyright holder. However, a license to make non-incidental, non-backup copies, to make derivatives, and to distribute copies, that would be a permissible license, since you can't otherwise do that for copyrighted software w/o authorization.
I'm sure my proposal could stand a bit of work, but what's your general opinion?
Well, mediums of communication pretty uniformly work this way. Otherwise communication would be utterly impractical.
You consent for mail to come into your mailbox, but you can take action to affirmatively stop it. You consent for people to cross your property to come and talk to you, but you can order them to leave or put up signs telling them not to even try. Phones are yet another example; if you're connected to the phone network, society presumes it's because you want to make AND receive calls. It's up to you to rebut this presumption.
A car isn't a proper analogy, since a car is not a medium through which people communicate with you.
I guess that's another opinion that depends on what you believe constitutes harm. When my blood pressure goes up, that's harm.
It's not judicially cognizable harm; it's not harm that justifies taking such a large bite out of the First Amendment. It is insignificant harm, and it is not worth having laws in place to prevent against it. Sometimes you've just got to suck these things up.
And of course, it is NOT harm to be offended, even if you think it is. See the famous Cohen case in which it was held to be legal to wear a jacket that said 'fuck the draft' even though this would surely offend people of delicate sensibilities. Essentially, those people live in the real world, and unless they want to cloister themselves, they're going to have to accept the fact that not everything is sanitized for their protection.
You, I suspect, are in the same boat.
In case you hadn't noticed, there are also laws against disrupting the peace because it is annoying.
But there are no laws against speech generally because it is annoying. And frankly, I'd disagree with what it takes to disturb the peace, as well.
You might be able to use annoyance to channel speech -- require calls to only come in during reasonable hours, for example. You could never use this to get rid of it altogether or place any serious burdens on it, such as forcing advertising to use a wholly different medium of expression.
I don't have a right to come to your house every morning at 2 AM and pound on your door until you answer it, although it does not cost you anything - I'd wind up in jail.
And yet, if you do the same thing six hours later, there's no problem. It might still be annoying you, though. Annoyance is simply not a significant factor -- if it is one at all -- in this discusion. I suggest that you find a better basis for your argument.
This is true. HOWEVER telemarketers are not trespassers. It is implicit in the mere fact of having phone service that you are willing to be called. If you don't want to be called, you can of course rebut this presumption by the simple and easy method of a) telling specific people not to call, b) telling the world or some subset not to call by virtue of appropriate notice that the affected classes are or reasonably should be aware of in advance, or some combination of a & b.
One form of notice would be the DNC list.
But if the recipient of the call is too lazy, he has no argument against unwanted calls that he's received, since merely by having the ability to take calls, he is assumed to have consented to receive them.
Same reason why it's not trespassing for someone to go onto your property and ask you if you've found Jesus, and if you have to please return him; you have automatically agreed to allow them to do that, unless you specifically refuse them that right.
Well, to clarify my position, I support the DNC, and I also support requiring telemarketers (and spammers) to honor individual requests to not call.
I have no problem with people taking legal action against those that violate these things. But there has to be some affirmative action by the recipients; I don't support a total ban on telemarketing or spam, assuming that they're otherwise legal.
If you know within a fraction of a second, then _that's_ the time that was wasted. From that point on, you have the power to unilaterally end the conversation by hanging up. If you stay on the line, they can't make you, so why should they be responsible for it?
I agree that if you tell someone to hang up they should, and that if you tell them to never call back again, they should respect that. I don't have serious objections to perhaps even making this legally enforcable, though I'm not convinced that the former is entirely wise.
But that's not the scenario that's generally being discussed; what people are discussing is that they feel that the mere fact that they receive a call is directly materially harmful to them. I can't agree with that.
That is certainly a matter of opinion as well as degree.
It's pennies. At MOST.
Specifically what the Supreme Court said, in regards to junk mail, which takes time to sort and throw out, was this:
Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Bolger v. Youngs Drug Products Corp., 463 US 60 (1983) (internal citations omitted)
It probably takes me, eh, a minute to sort through junk mail and get to a convenient trash can into which I can throw it out. But I can hang up on a telemarketer in two or three seconds.
I do not pay for phone service so shady, inconsiderate companies can disturb my peace with high-pressure sales calls.
Exactly. They're NOT HARMING you. They're just annoying you.
Some things in life, you are going to have to suck up, my friend. This is likely one of them, though I encourage you to use DNC lists, opt out, etc.
But there are certainly worse offenders out there using their freedom of speech -- the Klan, for example. If we have such a strong committment to free speech that we are going to allow such a hateful bunch of assholes the right to speak freely, then I see no reason why a call that you can pretty much instantly hang up on is so much worse that we have to regulate it.
I hate all advertising, everywhere, with 1 kilosol* but I'm prepared to live with the fact that it is one of those unfortunate consequences of living in a free society. It's one of those 'I may disagree with what you say, but fight to the death to defend your right to say it' sorts of things.
* 1 kilosol = the burning passion of a thousand suns
Yes -- that doesn't change that the burden is on the person seeking the restriction. The limits on commercial speech have nothing to do with a cost analysis. They have to do with whether the message is misleading, deceptive, is related to illegal activity, etc. See the Central Hudson and 44 Liquormart cases.
They're calling during reasonable business hours. How should they know that you have an uncommon sleep cycle? You haven't told them!
I wouldn't punish them for that. Then we'd end up reducing speech to a lowest common denominator (e.g. junk mail) and that's not acceptable, much in the way that the Internet cannot be forcibly cleared of pornography and objectionable material to make it safe for the tender eyes of children.
As for the DNC list, it doesn't cause telemarketers to coordinate their calls so that they are made in a manner intended to harass you. The DNC list is the equivalent of a 'no solicitors' sign. It's advance notice not to call, and should be respected just as equally as if you told a telemarketer that actually does call to not call again.
Obviously, telemarketers don't like that, but I would agree that they do have the right to bother anyone with a phone number, within certain limits (e.g. no fraud), unless the person with the phone has opted out specifically by telling off specific telemarketers, or generally by going on the DNC list.
Maybe, though I'm doubtful. You'd have to show that for people who did have only basic phone service (people who already had a solution already can schedule for convenience) that it was an unacceptable burden though. That is, the onus of proof is on the person seeking to regulate speech, and mere handwaving and arguments won't be enough. There would need to be a study, and real costs would have to be ascertained.
Your time isn't worth enough.
Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Consequently, the "short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned." Bolger v. Youngs Drug Products Corp., 463 US 60 (1983) (internal citations omitted)
I would expect that the same holds true for phone calls. You can avoid a telemarketing call by hanging up. Thus, the time spent between picking up the phone and hanging it up is a burden on your time that you'll have to put up with. It's not so big a deal that it would be constitutional to ban speech on account of it.
Were you called so often that it was harassing, then you might have a case. BUT this would likely require the same telemarketers to keep calling you. Different telemarketers that hadn't coordinated with one another surely can't be liable if they coincidentally happen to call you one right after the other.
Does the cost of your phone service vary depending on the volume of calls you receive? That is, if no one called you at all, would the bill be lower, and if everyone called you (b/c your number is 867-5309 or something) would it be really high?
If your bill only reflects charges for being connected to the network, and outgoing calls, then you suffer no economic harm from receiving calls. And note that whether you do suffer harm from recieving calls will depend on more than the mere fact (were it to be the case) that there's a charge -- then the charges would have to be shown to be material; minor charges aren't important enough to warrant a restriction on speech.
The Supreme Court did nothing at all to the Nike case. It settled out of court -- i.e. a mutual agreement was reached by the parties, who dropped the case.
Speech that leads directly to physical harm, such as the classic "yelling, 'Fire!' in a crowded theater" is not protected.
You're wrong about this in several ways. They're the typical ways that people fuck up when they use the fire example, and it is precisely why I HATE the fire example.
The CORRECT EXAMPLE is essentially 'yelling 'fire' falsely in a crowded theater and causing a panic.' If there IS a fire, regardless of who's hurt, we want you to yell. Thus, there has to be a combination of an intent to harm, and a reasonable likelihood that the speech will lead to the harm. If you lack intent (because there is a fire, and you really want everyone to escape safely) you're off the hook. If there is no likelihood of harm (because the theater is empty, or it's part of the play, or theaters are not the deathtraps that they were in 1919) then you haven't done anything wrong.
At any rate, the case that provides the fire example is no longer good law. It has been replaced by Brandenberg, and I suggest you read it.
Speech that somehow violates your property rights, such as political or religious campaigning on your doorstep or in your house is not protected.
This is not precisely true. If you don't state otherwise, you are deemed to implicitly permit people to use your property to a limited extent to contact you, vis a vis crossing your property to go to your front door and ring the bell. This is a consequence of living in society.
If you don't want door to door solicitors, it is YOUR problem to either tell them to never return, or to put up notice that solicitors are reasonably likely to be aware of inadvance, such as a sign.
But there generally cannot be laws prohibiting door to door solicitation, as might be the case were it not protected speech. Instead it's up to the individuals being solicited, and the government cannot make this decision for them.
For many years, neither was commercial speech in many ways
That's as stupid a statement as saying that for many years slavery was illegal. It's true, but it was so long ago that it is irrelevant. There are commercial speech cases dating back to the 40's IIRC that commercial speech is protected, and the only remaining question is how protected; for the past 20 years or so, it's been 'pretty damn well protected.'
Telemarketing is a hindrance to the consumer - it requires the user to pay for the telephone use - and it invades upon their personal time - at the company's discretion.
The cost to the user is so low, in time and money, as to not be worth considering. It is just like the cost that it takes to sort out junk mail from real mail, and to throw that junk mail away -- a burden that the Supreme Court has found recipients are stuck having to bear, and which you yourself don't have a problem with.
Yes, but it's allowed because they've been harassing you, and that's a high hurdle. You couldn't get a restraining order on a mere annoyance. Most telemarketing calls are the latter, not the former, IME. The free speech issue is a very important one, and if free speech means anything to us, we've got to take it seriously, even if we ultimately decide that there's no violation.
We're talking about phones -- you don't bear any significant costs from receiving a call.
What you really mean must be, 'what right does another have to send me messages I do not want?'
And this depends. Do they know you don't want them, or would they have to assume that despite having no evidence? If they know -- because you've told them not to call, or you've put up proper notice such as joining the DNC list, then I think you might have a point. But telemarketers aren't psychic, so it is not reasonable to expect them to know not to call you unless you've done _something_ to indicate to them (specifically or generally) that you don't want more calls.