Well, please note that the fault here lies with me. The statute in question is pretty clear. I just didn't paraphrase it very well.
That said, there are sufficient rules of statutory interpretation that the problem isn't really as bad as you make it sound. Most statutes are pretty clear, particularly when coupled with their definitional portions (which laypeople often neglect to read) or the rule that when in doubt, the plain dictionary sort of meaning is usually what's intended.
Or the fact that laws are interpreted by precendents from earlier court decisions and thus a "standard" interpretation is repeated over and over as "fact".
It is a fact. At least assuming that the precedent is binding.
If a law gets passed and then gets clarification in the court system no one goes back and re-writes the law for easier reading.
Well... bear in mind that if Congress messed with this, there'd very likely be a substantive change to the law while they were at it. Better to let that sleeping dog lie.
But there are 'hyperlinks' of a sort to help with this issue. There are annotated statute books that list cases that have impacted a law, typically with a brief explanation of how. And there are Shepard's books which track the entire history of laws or cases, prior to the particular point in time you're looking up, and afterwards, so that you can check to see what happened.
But 1) to a large extent, only lawyers really care about this (though they care a great deal) so most people aren't familiar with it, and 2) the government doesn't maintain these resources itself, so there's limited public access to them.
Personally, I think it would be a good idea for the government to supplant West and Lexis, but it would entail an awful lot of work, cost a fortune to start up and maintain, and they're apparently not interested.
If it is a barter though, remember that people will not have an obligation to return the 'borrowed' CDs.
At any rate, the problem is that Congress undertook it to specifically exempt in the same statute nonprofit lending libraries (i.e. most libraries, which lend to patrons, instead of keeping everything at the library), which would seem to imply that either Congress was confused and wanted to cover the ALA's ass, or Congress did mean for lending to include the ordinary act of lending without renumeration.
And of course, what of non-monetary renumeration? The Act has been amended so that trading of infringing copies can count as being monetary, IIRC. The idea being to crack down on warez sites that traded warez but where no money passed hands. Could impact this situation.
Card should stick to fiction. I wasn't impressed by his argument, and the number of errors in it don't speak well to his fundemental understanding of the issue.
Copyright is a temporary monopoly granted by the government -- it creates the legal fiction that a piece of writing or composing (or, as technologies were created, a recorded performance) is property and can only be sold by those who have been licensed to do so by the copyright holder.
This is untrue in several respects.
Firstly, there is no legal fiction that works are property, nor is there any legal fact that works are property. Creative works are not property. The copy in which a work is embodied certainly may be, but copies are distinguishable from the works they incorporate. Copies are not pieces of writing, or composing, or performances; those are works. Copies would be books, sheet music, or CDs embodying the works.
Furthermore, Card ignores 17 USC 109 (and a few related provisions) by making the erroneous claim that resale is limited to authorized persons. If he's ever set foot in a used bookstore, he'd know that his statement is simply incorrect.
And of course, he's ignorant of the history of protection afforded to sound recordings -- they were ineligible for copyrights until the early 1970's, long, long after the technology for recording performances had arisen. Edison cylinders are positively 19th century, for christ's sake!
In exchange for the private monopoly of copyright, when it expires the work is then free for anyone to perform or print or record.
Mm... this is an odd way to phrase this. I don't often see the copyright quid pro quo expressed from the author's point of view, and it seems rather lacking.
If we assumed that there was nothing more to it than this, there would be no copyrights; why would the public grant a copyright preventing them from freely making and enjoying copies so as to enjoy the public domain later, when by not granting copyrights they could enjoy the public domain now?
The missing element is progress. The reason copyrights are granted is so that we promote the _end_ of progress of knowledge generally by the _means_ of encouraging authors to create works which are of limited help towards the aim of progress during the copyright term, but are of maximal help towards that aim once the term expires.
We musn't grant these things because we feel like it or to help out authors or something. That would be really dumb for several reasons.
Until 1978, copyright only lasted 52 years in the U.S. -- and then only if you remembered to renew it.
56 years. A term of 28 years that could be renewed by the copyright holder in the last year (if he remembered -- if it was worth it to him, which it often was NOT) for another 28 years.
The term before that was 42 years (28+14), and before that was 28 years (14+14).
There were other technical lapses that could result in the inadvertent loss of copyright -- it wasn't really user-friendly.
User-friendliness is not a requirement of copyright law. To a degree it might be useful -- if copyrights are so difficult to acquire that they are not an incentive to authors, that's a problem. OTOH, if they are an incentive to authors, they needn't go so far as to fawn over authors.
Inadvertent losses of copyright are good. They ensure that works are not protected by law, yet are so worthless that their copyright holders don't care to maintain them. Such works should be in the public domain; the author doesn't seem to care, but there is still a deterring effect on the public that should be remedied. If action were required for this to occur, it would never be forthcoming; lazy copyright holders would hold onto their copyrights on the off chance that they'd be worth something later, and because it would cost money to get rid of them, but it's free to sit on them.
Similarly, if authors can't afford it, it implies that the work is a commercial f
It was once proposed that a company be formed that purchases a bunch of CDs. People then 'invest' in the company, so they own a part of the company, which in turn owns the CDs. Then they are all shared "owners" of the CDs.
Companies don't work like that. Due to the number of people you want, and some other issues such as incurring liabilities, what you'd basically have to have for the company's form is a corporation. But corporations are their own entities; owning stock in a corporation doesn't entitle the shareholder to stuff the corporation owns. It owns its own stuff in its own name.
Example: If I am a shareholder in Coca-Cola (and a lot of people are) I can't just demand free drinks. I don't own any of their inventory just because I own part of the company itself.
So here's my question: What is the granularity of copyright law? Obviously no larger than an album, but how about one 44 thousandth of a second? Sampling rate?
This is my idea. I purchase a CD, rip the songs to MP3 (within my rights, obviously), and then set up some software which would check out 1/44,000th of a second to people who request it. In this way, I'd stream to them the entire song on demand, with perhaps a little bit of a delay if someone else is accessing that 1/44,000th of a second. Now, since now two 1/44,000th of that song would be at use at a given time, would it be in violation of copyright? I don't see how it could be.
No, you'd be infringing in several different ways simultaneously, in fact.
Here's a good rule of thumb: are you being a clever bugger, achieving a result that is clearly intended to be forbidden by the law by employing a loophole that can be argued about? (e.g. the 'granularity' thing) If so, you'll lose. Judges _HATE_ people who think they're this clever. They will go to extreme lengths to shut you down, and they will not side with you.
There are some exceptions, but generally that's how things are.
Incidentally, what you proposed is quite reminiscent of mp3.com's attempt to do the same thing. They lost in court.
CDs are a terrible example. I'll get into why in a minute. For now, let's use books.
Yes, if you got together with others and each bought different books and lent them to one another, you would not violate copyright laws. Let's look at precisely why this is so.
17 USC 106 states in short that only the copyright holder may distribute copies of his copyrighted work. This explicitly includes lending.
17 USC 501 tells us that to violate any of the exclusive rights of the copyright holder, such as those in 106 is to infringe.
Fortunately, you're saved by 17 USC 109, which carves out an exception to the broad 106 right to distribute, and permits people who lawfully acquire a copy of a work to resell, or lend it out as they see fit. Because 106 as modified by 109 no longer makes this activity exclusive to the copyright holder, it's not an infringement under 501.
So you can lend books. You can lend any copyrighted matter. At least, as long as it falls under 109!
Unfortunately, two special interest groups had strong enough lobbies to get exempted from 109. The music industry, and the software industry. The exemptions can be found in 109(b)(1)(A). (the general first sale provision itself is 109(a))
There is NO FIRST SALE RIGHT FOR SOUND RECORDINGS OR COMPUTER SOFTWARE insofar as 1) this only pertains to rental, lease or lending -- you can still sell this stuff used if you lawfully acquired it, 2) this only pertains to sound recordings, or computer software that is not embodied in hardware, or that is not intended for use on a limited purpose computer for game playing (i.e. console games), 3) there are some exceptions for libraries with regards to this, but most of us are not a real library.
So you actually would be infringing copyrights to lend a CD to a friend, provided that a court construes "lending" in the statute to be the same kind of lending, which on the face of it, seems to be inescapable.
Fortunately, if it's just between friends, you're unlikely to get _caught_, and if you're not caught, do you really care if it's illegal?
Now, you could further claim that lending it to a friend is a fair use, under 17 USC 107, but that requires an analysis of the SPECIFIC FACTS under the fair use test, a form of which is given in the section. Note that ALL PURPORTED FAIR USES MUST BE ANALYZED, NO EXCEPTIONS. The examples given in 107 aren't broad exceptions, they're examples of the kinds of uses Congress _imagined_ would probably suffice. News reporting has been held unfair before, for example, so don't take anything for granted.
So this is nonprofit (good), with non-factual works (bad), distributing the entire work (bad), with the effect on the market of making a sale less likely to the person who borrowed it since he can just borrow it (and perhaps make an unactionable infringement per 17 USC 1008 IF HE COMPLIES WITH THE STATUTE FULLY AS DEFINED IN 17 USC 1001 which no one ever reads) and not have to pay to enjoy it. OTOH it's rather de minimis since the lending circle is quite small, presumably.
I think it would be fair, but it's actually a borderline case given how the test works.
That's why the example using CDs is not very good.
On the whole, it pays to look through the copyright statute (17 USC) rather than listen to what a lot of the/. crowd has to say.
But it doesn't say that it's property at all. Copyright laws as a rule don't refer to the term IP. They just call it copyright.
Given that IP is a general term encompassing obviously non-property oriented fields, such as trade secrets (which aim to stem unfair competition, and are entirely unlike and unrelated to property) you're clearly misusing it.
Personally, as someone who's seriously been studying this stuff for years now, the best thing to do is not even use the term IP. If you want to discuss copyrights, or patents, or trademarks, or trade secrets, or publicity rights, or whatever, just refer to the particular thing you're talking about accurately. None of them are really related to one another -- it's a dumb idea to act as if they all are just facets of the same thing.
Apple mice use one button because their research indicates
Sadly, there was never any research. It was more of an informal observation made by Jef Raskin, way, way, back when he saw users getting confused using the three button mice on the Xerox Alto.
And remember, the behavior of buttons back then was quite different to what we're used to now. There were no double clicks. There was no dragging. Naming conventions were awful (they were called red, yellow, and blue, but the buttons were in fact all black, and the screen wasn't in color). And the buttons all did different things in different programs, instead of exhibiting some standard behavior.
I don't think it was an awful decision -- Windows didn't significantly use the second button until the Win95 era. And the work done in making the first button very useful has been copied pretty much everywhere.
Though of course the anecdotes of people being confused by multiple buttons have not gone away, and I've seen it before. Both in terms of users knowing which button to push (primary or secondary) but forgetting which is left or right or accidently pressing the wrong one, and in terms of users not knowing which button to push.
At the very least, making the buttons seriously distinct should be on the agenda. Left and right isn't enough. They should be distinguished in terms of position, shape, size, resistance to pressure, texture, color, be given more prominent names, and have labels with those names on the mouse. Everything to make sure that people aren't going to mix them up.
I don't pay a fee when someone knocks on my door. I don't pay the Post Office when they deliver an ad to me. I don't pay the phone company when a telemarketer calls.
There's still a cost, however. At a minimum there's a cost in time and perhaps even psychic well-being in receiving this stuff if only to dispose of it as quickly as possible. Yet, it's a cost that the recipient winds up having to bear.
Someone who is sending spam e-mail with a forged, invalid return address which links to a domain registered with falsified contact information is not trying to initiate "discourse with strangers."
Well, I'd say they are. However, due to the presence of fraudulent information in the spam -- the false return address and contact information -- I'd support recipients having a legal cause of action against such a spammer.
Not because it's spam, but because it's false spam.
The content of the speech is key.
Yeah, and restrictions by the government based upon content are the hardest to enforce, short of prior restraints which are just about impossible.
Commercial speech and non-commercial speech are different.
True, but it's an increasingly pointless distinction.
That's why it is illegal for telemarketers to call you at 11 o'clock at night while your friend can call anytime. It's why adult advertising sent through the mail must be marked that way.
Well, it's not inherently illegal for telemarketers to call you late at night. First, there would have to be a law against it. Without such a law, it's fine for them to do so. And when there is such a law, it is inevitably a time/place/manner restriction. That is, such a law absolutely cannot be used to prevent a telemarketer calling at all, only to channel their calls to acceptable times when they still have a chance of reaching someone. I'd suspect that given the right circumstances (e.g. a night worker who's only awake and at home outside of regular hours) that it could nevertheless be skirted around since t/p/m restrictions aren't allowed to ban speech.
As for adult advertising, I've never gotten any, but it's surprising that it has to be marked. What's your support for this?
The only commercial advertising which should be legal via e-mail is that to which the recipient has opted in. What you are advocating is assuming that the recipient wants their bandwidth and storage used for someone else's ad unless they opt out.
You're right; I believe that the first amendment basically demands that we have an opt-out assumption.
Where the spam originates is immaterial. If some sleazeball in North Carolina pays some ISP in China to host his herbal Viagra site and pays some Brazillian ISP to send the spam, he's still the one responsible for it and would still be answerable under just about any well-crafted law. And the vast majority of spam received by Americans is spam sent from other Americans, whether through US ISPs or overseas ISPs.
Well, discovery might prove to be a serious problem, but assuming that you're right, perhaps it wouldn't be as big of an issue as I'd thought.
So all you are in favor of is requiring a valid remove address? That's assinine. Opt-out is a favorite of spammers everywhere because it gives each and every spammer the opportunity to spam you and puts the burden on you to tell dozens, if not hundreds, of them every week that you don't want any more spam from them.
No. I'm in favor of requiring that the entire spam be truthful in all respects, including the claims made in the spam.
At any rate, as the FTC list shows us, it ought to be possible to create a system of preemptive en masse opt-outs (much like a no solicitors sign) rather than having to do it on an individual basis, curing the problem you've identified.
Indeed, the parallel is really there -- if you didn't have a sign, you'd have to tell each individual door to door salesman to leave. Presumpt
They clog up my inbox, potentially drowning legitimate mail. It's like phone salesmen calling you up all the time so no real calls can get through.
And yet, I'm not forced to pick up the phone. Or even have a phone. Or listen to them once I do pick up the phone. There's still no compulsion.
I think you would find that somewhat annoying. No, you would find it intolerable and would want it to stop immediately.
Actually I find all advertising intolerable. This includes spam, printed ads, billboards, banner ads, junk mail, and anything but the most subtle logos on products including clothes. I have difficulty shopping for sneakers because I won't buy any with prominent logos. (or hideous colors)
Remember how back in the 80's generic products were sold typically in plain white packaging with plain black text indicating merely what the product was? (this was typically food products in grocery stores) I'd be perfectly happy if the whole world were like that. You can't imagine how much I hate advertisements of any stripe.
I'd really like to simply filter my perceptions of the world so that I could live ad-free, forever.
First, spammers do everything they can to avoid spam filters, forcing their way into your mailbox.
That's allowed. I get junk mail in plain envelopes from time to time -- as long as it doesn't try to deceptively look like something other than an ad, it doesn't have to look like any particular ad.
Also, not everyone has the luxury of being able to filter mail, and has to read through every single mail, as they cannot afford deleting legitimate mail.
Maybe, but that's probably not that common, and at any rate not a sufficient concern to justify the government stepping in.
But you cannot force anyone to listen, which is what spammers are trying to do.
Except they're not. Sending me a whole truck full of junk mail does not mean that I am being forced to read it. Volume does not equal compulsion.
Irrelevant. They represent a business selling a product. Their rights as individuals would not be affected negatively by anti-spam laws.
Not in the least. If I send a spam to everyone I know and even a lot of people I don't telling them to buy a widget, that doesn't mean I'm a representative of the widget company. Similarly, there is such a thing as political spam. And spam for charitable organizations.
And at any rate, businesses do enjoy significant first amendment rights, so your point is irrelevant anyhow.
No, because if the recipient asked to receive it, it is no longer spam.
I didn't say that. I said the recipient wanted to receive it. I didn't say he announced that. Some people like getting unsolicited catalogs or things in the mail. There's certainly plenty of people who like the Publisher's Clearinghouse junk mail but who did not sign up for it.
Spam costs us time and money, and it is forced down our throats. That is why it has to be banned.
Spam probably does not cost a sufficient amount of time or money to justify the evil of government intrusion into the realm of free speech, is not forced down anyone's throat as shown above, and is fundementally an aspect of free speech in a free society.
No one ever said that living in a free society would be all sweetness and light. You're going to have to tolerate the fact that other people who you don't like are here too, and are just as free.
Similarly, the Mafia qualifies as an unpopular minority. We must therefore defend its right to bust kneecaps and force "protection" money out of people.
Battery certainly isn't a free speech issue. It's insane to even say that it is.
Extortion _is_ actually, and has to undergo careful analysis (under Brandenberg) to be made illegal. And it is, but it's certainly nothing like spam. I've never gotten a spam that said 'read this or we'll burn down your dog,' have you?
Generally when people talk about forced, or compelled speech, they mean speech that people are forced to say whether or not they actually want to.
For example, in 1942, the Supreme Court decided that it was unconstitutional to force schoolchildren to recite the pledge of allegience. (The recent Newdow case out west was actually about whether they could be pressured into saying it due to teachers being required to recite it, which would tend to lead the kids on)
AFAIK the government is not forcing spammers to send spam.
So I think that what you meant was that people are forced to receive or read or respond in some way to the spam. (either literally, or by doing what the spam advocates)
But I don't believe that any of those contentions are true -- people do not have to receive spam. You can whitelist, blacklist, blackhole servers that send spam, or simply pull the plug on your email. Likewise, no one is compelled by the government to read or do anything in response to spam.
Spam is all about forcing people to listen to you.
Like I said, it's not. All the spammers in the world can't actually force me to read my email. They can _send_ me email, but they're capable of guaranteeing nothing further. As is well known, spam can be blocked or ignored at any time after it has been sent.
Spam is not free speech.... Spam is commercial speech.
Commercial speech is free speech.
Banning spam does not affect people negatively, it affects companies that make a living by forcing people to receive mail from them.
You forget that 1) there are individual people that send spam as well, who would be affected negatively, 2) bans on spam could be dangerously far-reaching which is why whenever restrictions on speech appear, we must be extraordinarily cautious to ensure that they're benign, or at least as minimally malignant as possible, 3) companies have free speech rights as well, 4) the rights of individual recipients who WANT to receive spam (and spammers wouldn't spam if someone were not responding positively to it) would be harmed if you banned spam.
Just because _you_ don't like spam, or even because _most people_ don't like spam is not itself enough reason to ban it.
The first amendment is all about protecting unpopular minorities. Spammers qualify as one.
The people have spoken in survey after survey and said that there is no implied permission to spam them.
Well, I'd like to see the surveys, but at any rate, you're making the same mistake again. If people say there is no permission, that's explicit. So even if there is such a survey as you describe, it's flawed, because the answer is to a different question.
A better question would probably be: In general, are people allowed to initiate discourse via email with strangers, or must the stranger invite them to start sending email first?
Which of course leads to the obvious problem with a lack of implied permission -- if they're strangers, wouldn't it basically be impossible to ever have any discourse? The person who wants to talk cannot until invited to do so, and the person who can make the invitation doesn't know anyone wants to talk to him until he's told about it!
It costs me nothing for someone to deliver their message by knocking at my door, calling me on the phone, or sending me conventional mail.
This is not true.
You also ignore the restrictions placed on commercial speech of the specific types that you mention. If I don't want a salesman knocking at my door, I can inform them of that in a legally binding way with "no soliciting" and "no trespassing" signs. If I don't want a phone solicitor to call me, I can put myself on the recently-enacted "do not call" list -- or I can choose to tell a specific telephone solicitor to put me on their firm's do-not-call list. If I don't want sexually explicit ads mailed to me via conventional mail, I can fill out a Form 1500, (Application for Listing and/or Prohibitory Order). I can also designate any sender from whom I wish to receive no further mail.
And you ignore that these are not governmental restrictions. Although enforced by the government, they are PRIVATE restrictions. That is, only the private person being communicated to can initiate these restrictions, and furthermore they must take affirmative action to do so -- by putting up a sign, or signing up on a list, or filling out a form, or telling people to go away.
I think that this is PERFECTLY acceptable with regards to spam. And I have NO PROBLEM with the government providing a cause of action for people who give proper notice (what constitutes proper notice is an interesting question -- it's got to be something the spammer actually knows or reasonably ought to be aware of -- trivial forms of notice are insufficient) to spammers but where that notice is ignored.
And broad governmental restrictions on fraudulent or harassing spam are also things that I endorse.
But none of these is a broad ban against all spam. Truthful, non harassing spam that is not affirmatively rejected by the recipient should be entirely legal. There's no reason to ban it! But whenever people say 'all spam should be banned' they're necessarily including this, and that means they've gone too far.
However, I will say that due to the possibility of spam originating overseas, it may be impossible in practice to get rid of it. A regulation on speech is already a bad thing no matter what, and can at best only be balanced out by some good that results from it. If the situation wouldn't change because spammers successfully avoid our jurisdiction over them, our regulations are probably inappropriate since they're causing harm without also having some good result.
Codify the majority belief that there is no implied permission to spam. Craft a law which recognizes that recipients bear the cost of spam and require that senders have explicit permission to send ads to each recipient. Require that commercial e-mail have a valid return address, that it be identified via a header as advertising, and that there be a valid "remove" address.
I don't believe that either of the first two aspects of your proposal would survive scrutiny.
However, I'm fully supportive of the last part, with the exception that spam should NOT be
Well, there are some interesting challenges that can be made to the FTC's Do Not Call list.
Overall though, I support it, but I do not believe that it is a government restriction on speech. Fundementally, it is a method for individuals to provide notice to telemarketers to not call them, much like in the real world individuals can put up 'no solicitors' signs but the government cannot ban solicitors of its own accord. (and there have been cases to that effect)
I'm very much in favor of PRIVATE action -- such as providing notice -- to stop spam. I don't think a 'do not spam' list would work, due to the difficulty of international litigation, but then that same caveat applies to any proposed spam regulation!
You also pretend to be a lawyer, but can't understand even the basics of the law. I'm betting your a DMA puppet.
I don't pretend to be a lawyer. My sig here makes that awfully clear. However, if all goes well, I expect that I _will_ be a lawyer sometime next year. Gotta finish up my last semester, then take the bar. I do think that I have a decent understanding of the law though, but I'm sure it could be improved.
And I'm not a DMA puppet either. I just have a strong, sincere belief in the importance of the freedom of speech. No matter how distasteful I find spammers (in fact I probably hate all advertising, everywhere, more than most people here -- you should see how agressive my web filters are) I do respect that they have a right to speak that the government should not casually interfere with.
Who do you think pays for the bandwidth used by spammers who send mail to your ISP's users? The ISP - and then they pass the costs on to you and the other subscribers.
My costs have not wavered in years, however, from a wide variety of local ISPs around the country. The stability in ISP costs seems to belie your position.
That's analogous to saying that you knew that there were costs associated with owning a car so you have no right to complain when someone siphons gas out of your tank every night. No, that's a non sequitur.
My server is my private property. I paid for it. I maintain it. I pay for the connection. It's my decision who I authorize to use it.
All true.
There is not any kind of implied permission for every dickhead sleazy con artist who wants to tell me about penis enlarging ripoffs and debt consolidation scams to use my bandwidth, server, and storage to do so.
No. You don't get to decide whether or not there is implied permission. Other people do. This is why it often behooves people to be explicit.
What you can do is explicitly revoke implied permission -- but you have no say in whether in society as a whole there is implied permission or not.
But there seems to be. Let's look at other forms of commercial communication: Salesmen are allowed to trespass on your property and knock at your door to sell you things; Phone solicitors can call you to sell you things; Junk mailers can mail you to sell you things.
Due to how our society operates, it's implied that they're allowed to open communication with you.
If you actively revoke that societally-imposed implicit authorization, then they no longer are allowed. (at least with regards to you)
There's a good analogy in tort law. It is absolutely illegal for people to touch you without your permission, no matter how slight it might be. BUT if you were, say, on a crowded subway car, it's perfectly okay for people to jostle you in the absense of a stated preference otherwise, since this is part and parcel of our society -- we accept people will bump into us on the Green Line.
Having an email address is an invitation to the world to email you; it's up to you to inform them otherwise.
Nor is there permission for them to harvest e-mail addresses off of my web page and, in fact, it clearly states that such use is prohibited.
I seriously doubt that that one is enforcable. And I think that it is probably best if it is not, since it is part of the recent regime of adhesive contracts that frankly has been amazingly annoying, if not harmful to numerous aspects of freedom.
I find it rather suspicious how you always come down on the side of spammers
That's because I always come down on the side of free speech. I hate spammers, but I defend their free speech rights. I hate Illinois Nazis too, but I'd defend their free speech rights as well.
Figure out a way to get rid of spam that doesn't jeopardize free speech, and I'd be all for it. So far we have 'no spam' notices, laws against fraud, filtering, etc. If you've got something better up your sleeve, now's a good time to let us in on it.
You're confusing speech with conduct associated with speech or the effect of speech.
The only form of speech per se that is unprotected AFAIK is obscenity. Everything else that suffers a limit is by virtue of some aspect of the overall situation that is not in fact speech, just speech-related.
Grafitti isn't barred on the basis of the _content_. It's legal to rent a billboard and put up your grafitti there. We're regulating the damage done to other people's property when we regulate grafitti. Doing it in a different manner wouldn't be objectionable.
Causing a public disturbance is illegal likewise because you're causing a public disturbance. The words themselves aren't at issue. (and incidentally the fire example is awful, and no longer good law, and you got it wrong) Plus it's not that easy to be successfully charged under this if all you did was speak. Incitement is a tough charge.
And being insulting to people is NOT illegal, all else being equal. That was settled quite some time ago in the Cohen case, wherein a guy wore a jacket that read "Fuck the draft" on it and when prosecuted for violating obscenity statutes won and had the statutes overturned since the government interest in keeping people from being insulted is puny compared to the first amendment.
(Fighting words would fall under the incitement thing though, since again, you're trying to pick a fight -- the words aren't important, it's the context and the intended and likely results)
Advertisements as a rule don't rise anywhere near to the level of being non protected speech. There is a lesser amount of protection, but it's not much lesser, and the gap has been closing for a long time now. Basically ads can't be fraudulent (which most spam is, which means we don't need an anti-spam law as long as we can operate under an anti-fraud theory -- anti-spam laws would in fact only be good for _truthful_ spam, which really shouldn't be banned), and in some cases must include disclosures of additional information. (e.g. with food, drugs, etc) There's little else that springs to mind.
Well, it may not be sufficiently clear notice. A real-world no solicitors sign is great for keeping out door-to-door salesmen, but it has no effect unless the salesmen are actually aware of it, or unless the sign is sufficiently prominent so that they should have been aware of it. Your thing is probably the best that can be done under the circumstances, but I honestly don't know whether or not it's good enough.
However, let's assume for the sake of argument that it is. In that case I have absolutely _no_ problem with laws prohibiting their behavior, or your seeking recourse against them.
But I think that that the burden does lie on the recipient to indicate that he doesn't want further communications. Spam cannot simply be banned en masse. Since we don't like fraud, fraudulent spam can be. Since we don't like harassment, harassing spam can be. And since we don't like people who violate 'no further communication' notices (where relevant -- there's far less you can do about being solicited if you're out in public, since solicitors have a right to be there and to speak there), that sort of spam can be.
That's certainly a lot of spam, but it is merely a subset of all spam.
If you get truthful, non-harassing spam in the absence of your telling spammers to leave you alone -- that can't be banned, even if it's bothersome.
Of course, there is an issue of it being potentially harmful to free speech to be able to arbitrarily ban people from communicating with you on pain of penalties. It's not out of the realm of possibility that it's a good idea for communication to be, on the whole, unrestricted from government intervention. So it probably is a good idea to remain cautious, and err on the side of spam lest we do something bad. Spam at least we know we can live with and still privately filter.
Yes it is. It's speech intended to get you to buy something, generally. It's hardly distinguishable between purely political speech which is often intended to get you to vote for someone.
Feel free to make your assertion, but you'd back it up a lot more by providing some sort of legal basis for it, since that's what's important here, basically. But you won't find one since no one knowledgable about the subject really agrees with you.
the government preventing someone else's "communication" from costing us money
First, I doubt that there's any material cost to you.
Second, everyone who has resources consumed by spam can pretty safely be said to have known that there were costs involved in being connected to the network -- if they proceeded, they assumed those costs. It's what one of my profs refers to as the Superchicken rule. Postal mail and telephones cost the user money as well. When you get a telemarketing call, or junk mail, it costs you money. If you don't like it, don't receive mail or have a phone.
A marketer's right to push his information into my living room ends at my doorstep, whether it be physical or electronic.
This is true. However, this is either inapplicable to email or places email outside of your door. Certainly the analogy is lacking; email doesn't work like a house.
This isn't about freedom of speech in this case at all, as it's been determined before that commercial entities have a very limited right to freedom of speech.
That's flatly untrue. Commercial speech has been acquiring more and more parity with regards to first amendment protections for decades. At this point the largest limit specifically to commercial speech are compelled disclosures (e.g. nutritional information on food). Other limits are of general application, such as that against fraud.
Nothing in the Constitution compels us to listen to or view any unwanted communication
That's true. But that doesn't mean a hell of a lot. Spammers cannot force you to read spam. That is not the same as saying that spammers cannot SEND spam.
As the Rowan court says In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.
In sum: if you don't want spam, it's up to you to hold yourself out as not wanting spam so that spammers know not to send you spam.
If you don't do that, all else being equal, you're out of luck.
Well, if I remember my restatement correctly, they can sort-of enter into binding contracts. Just not binding against them, should they decide later to get out of it (and probably return what they got from it). It's perfectly binding the other way though! Still, it's enough to deter most people from bothering.
At any rate, since IIRC parents aren't responsible for the torts of their kids, and this probably qualifies, the little girl might as well declare bankruptcy. She has no assets to speak of, and by the time she turns 18 enough time will have passed that it'll be irrelevant to her.
Fair Use does NOT, and has NEVER allowed you to distribute copyrighted works in their entirety.
Yes it does.
In fact, it's possible for fair use to allow you to distribute a copy, in its entirety, to every man, woman, and child, and write it on the surface of the Moon with a big laser for good measure.
Fair use might also deny people from "excerpt[ing] portions of a copywritten [sic] work for purposes of review or criticism, or for academic purposes."
It depends.
The one and only absolute about fair use is that there are no absolutes.
EVERY SINGLE ALLEGED FAIR USE MUST BE INDEPENDENTLY JUDGED ACCORDING TO THE JUDICIAL AND STATUTORY CRITERIA FOR FAIR USES, BASED ON THE FACTS SPECIFIC TO THAT USE.
So given the right set of circumstances, it's entirely possible to distribute complete copies. Or to not be allowed to copy just a little bit for a review.
Feh. You get kudos for looking it up in the OED. It's the dictionary that God would use, if he weren't omniscient.
But your kudos are immediately stripped away from you for not looking up variants of 'piracy' that might predate it.
AFAIK the earliest use of any sort of piratical word to describe unauthorized copying is from 1668, calling them 'land-pirats.' Note that copyrights didn't appear until 1710.
Songs aren't property, and copyrights aren't property rights.
So while your argument is great in the right arena, it's misapplied here.
Rather, what's happening is that while songs are not ownable at all, RIAA members hold copyrights on those songs. While copyright law does not by any means prevent non-copyright holders from distributing copyrighted works via any medium no matter what, in some cases -- perhaps many cases -- it does. It's impossible to steal a song, and it's effectively impossible to steal a copyright. (at least I can't reckon how one would) But it is possible to impermissibly exercise rights that copyright law permits copyright holders to bar other people from exercising. The act of ignoring the copyright holder's desire to exclude one from exercising those rights is an infringement on the copyright holder's right to exclude.
Remember kids, when discussing nonproperty rights, 'infringe' is typically the right word to use, e.g. 'the government made my religion illegal, infringing on my right to worship as I see fit.'
Incidentally, even if we _did_ treat copyrights as property rights, which we don't, there are STILL significant limits on it. Property rights are equally as artificial as copyrights, and numerous doctrines exist for limiting the scope of such rights. P2P sharers would still have arguments available to them to defend their behavior, and might even win.
Slashdot Mirror
Well, please note that the fault here lies with me. The statute in question is pretty clear. I just didn't paraphrase it very well.
That said, there are sufficient rules of statutory interpretation that the problem isn't really as bad as you make it sound. Most statutes are pretty clear, particularly when coupled with their definitional portions (which laypeople often neglect to read) or the rule that when in doubt, the plain dictionary sort of meaning is usually what's intended.
Or the fact that laws are interpreted by precendents from earlier court decisions and thus a "standard" interpretation is repeated over and over as "fact".
It is a fact. At least assuming that the precedent is binding.
If a law gets passed and then gets clarification in the court system no one goes back and re-writes the law for easier reading.
Well... bear in mind that if Congress messed with this, there'd very likely be a substantive change to the law while they were at it. Better to let that sleeping dog lie.
But there are 'hyperlinks' of a sort to help with this issue. There are annotated statute books that list cases that have impacted a law, typically with a brief explanation of how. And there are Shepard's books which track the entire history of laws or cases, prior to the particular point in time you're looking up, and afterwards, so that you can check to see what happened.
But 1) to a large extent, only lawyers really care about this (though they care a great deal) so most people aren't familiar with it, and 2) the government doesn't maintain these resources itself, so there's limited public access to them.
Personally, I think it would be a good idea for the government to supplant West and Lexis, but it would entail an awful lot of work, cost a fortune to start up and maintain, and they're apparently not interested.
If it is a barter though, remember that people will not have an obligation to return the 'borrowed' CDs.
At any rate, the problem is that Congress undertook it to specifically exempt in the same statute nonprofit lending libraries (i.e. most libraries, which lend to patrons, instead of keeping everything at the library), which would seem to imply that either Congress was confused and wanted to cover the ALA's ass, or Congress did mean for lending to include the ordinary act of lending without renumeration.
And of course, what of non-monetary renumeration? The Act has been amended so that trading of infringing copies can count as being monetary, IIRC. The idea being to crack down on warez sites that traded warez but where no money passed hands. Could impact this situation.
Card should stick to fiction. I wasn't impressed by his argument, and the number of errors in it don't speak well to his fundemental understanding of the issue.
Copyright is a temporary monopoly granted by the government -- it creates the legal fiction that a piece of writing or composing (or, as technologies were created, a recorded performance) is property and can only be sold by those who have been licensed to do so by the copyright holder.
This is untrue in several respects.
Firstly, there is no legal fiction that works are property, nor is there any legal fact that works are property. Creative works are not property. The copy in which a work is embodied certainly may be, but copies are distinguishable from the works they incorporate. Copies are not pieces of writing, or composing, or performances; those are works. Copies would be books, sheet music, or CDs embodying the works.
Furthermore, Card ignores 17 USC 109 (and a few related provisions) by making the erroneous claim that resale is limited to authorized persons. If he's ever set foot in a used bookstore, he'd know that his statement is simply incorrect.
And of course, he's ignorant of the history of protection afforded to sound recordings -- they were ineligible for copyrights until the early 1970's, long, long after the technology for recording performances had arisen. Edison cylinders are positively 19th century, for christ's sake!
In exchange for the private monopoly of copyright, when it expires the work is then free for anyone to perform or print or record.
Mm... this is an odd way to phrase this. I don't often see the copyright quid pro quo expressed from the author's point of view, and it seems rather lacking.
If we assumed that there was nothing more to it than this, there would be no copyrights; why would the public grant a copyright preventing them from freely making and enjoying copies so as to enjoy the public domain later, when by not granting copyrights they could enjoy the public domain now?
The missing element is progress. The reason copyrights are granted is so that we promote the _end_ of progress of knowledge generally by the _means_ of encouraging authors to create works which are of limited help towards the aim of progress during the copyright term, but are of maximal help towards that aim once the term expires.
We musn't grant these things because we feel like it or to help out authors or something. That would be really dumb for several reasons.
Until 1978, copyright only lasted 52 years in the U.S. -- and then only if you remembered to renew it.
56 years. A term of 28 years that could be renewed by the copyright holder in the last year (if he remembered -- if it was worth it to him, which it often was NOT) for another 28 years.
The term before that was 42 years (28+14), and before that was 28 years (14+14).
There were other technical lapses that could result in the inadvertent loss of copyright -- it wasn't really user-friendly.
User-friendliness is not a requirement of copyright law. To a degree it might be useful -- if copyrights are so difficult to acquire that they are not an incentive to authors, that's a problem. OTOH, if they are an incentive to authors, they needn't go so far as to fawn over authors.
Inadvertent losses of copyright are good. They ensure that works are not protected by law, yet are so worthless that their copyright holders don't care to maintain them. Such works should be in the public domain; the author doesn't seem to care, but there is still a deterring effect on the public that should be remedied. If action were required for this to occur, it would never be forthcoming; lazy copyright holders would hold onto their copyrights on the off chance that they'd be worth something later, and because it would cost money to get rid of them, but it's free to sit on them.
Similarly, if authors can't afford it, it implies that the work is a commercial f
It was once proposed that a company be formed that purchases a bunch of CDs. People then 'invest' in the company, so they own a part of the company, which in turn owns the CDs. Then they are all shared "owners" of the CDs.
Companies don't work like that. Due to the number of people you want, and some other issues such as incurring liabilities, what you'd basically have to have for the company's form is a corporation. But corporations are their own entities; owning stock in a corporation doesn't entitle the shareholder to stuff the corporation owns. It owns its own stuff in its own name.
Example: If I am a shareholder in Coca-Cola (and a lot of people are) I can't just demand free drinks. I don't own any of their inventory just because I own part of the company itself.
So here's my question: What is the granularity of copyright law? Obviously no larger than an album, but how about one 44 thousandth of a second? Sampling rate?
This is my idea. I purchase a CD, rip the songs to MP3 (within my rights, obviously), and then set up some software which would check out 1/44,000th of a second to people who request it. In this way, I'd stream to them the entire song on demand, with perhaps a little bit of a delay if someone else is accessing that 1/44,000th of a second. Now, since now two 1/44,000th of that song would be at use at a given time, would it be in violation of copyright? I don't see how it could be.
No, you'd be infringing in several different ways simultaneously, in fact.
Here's a good rule of thumb: are you being a clever bugger, achieving a result that is clearly intended to be forbidden by the law by employing a loophole that can be argued about? (e.g. the 'granularity' thing) If so, you'll lose. Judges _HATE_ people who think they're this clever. They will go to extreme lengths to shut you down, and they will not side with you.
There are some exceptions, but generally that's how things are.
Incidentally, what you proposed is quite reminiscent of mp3.com's attempt to do the same thing. They lost in court.
CDs are a terrible example. I'll get into why in a minute. For now, let's use books.
/. crowd has to say.
Yes, if you got together with others and each bought different books and lent them to one another, you would not violate copyright laws. Let's look at precisely why this is so.
17 USC 106 states in short that only the copyright holder may distribute copies of his copyrighted work. This explicitly includes lending.
17 USC 501 tells us that to violate any of the exclusive rights of the copyright holder, such as those in 106 is to infringe.
Fortunately, you're saved by 17 USC 109, which carves out an exception to the broad 106 right to distribute, and permits people who lawfully acquire a copy of a work to resell, or lend it out as they see fit. Because 106 as modified by 109 no longer makes this activity exclusive to the copyright holder, it's not an infringement under 501.
So you can lend books. You can lend any copyrighted matter. At least, as long as it falls under 109!
Unfortunately, two special interest groups had strong enough lobbies to get exempted from 109. The music industry, and the software industry. The exemptions can be found in 109(b)(1)(A). (the general first sale provision itself is 109(a))
There is NO FIRST SALE RIGHT FOR SOUND RECORDINGS OR COMPUTER SOFTWARE insofar as 1) this only pertains to rental, lease or lending -- you can still sell this stuff used if you lawfully acquired it, 2) this only pertains to sound recordings, or computer software that is not embodied in hardware, or that is not intended for use on a limited purpose computer for game playing (i.e. console games), 3) there are some exceptions for libraries with regards to this, but most of us are not a real library.
So you actually would be infringing copyrights to lend a CD to a friend, provided that a court construes "lending" in the statute to be the same kind of lending, which on the face of it, seems to be inescapable.
Fortunately, if it's just between friends, you're unlikely to get _caught_, and if you're not caught, do you really care if it's illegal?
Now, you could further claim that lending it to a friend is a fair use, under 17 USC 107, but that requires an analysis of the SPECIFIC FACTS under the fair use test, a form of which is given in the section. Note that ALL PURPORTED FAIR USES MUST BE ANALYZED, NO EXCEPTIONS. The examples given in 107 aren't broad exceptions, they're examples of the kinds of uses Congress _imagined_ would probably suffice. News reporting has been held unfair before, for example, so don't take anything for granted.
So this is nonprofit (good), with non-factual works (bad), distributing the entire work (bad), with the effect on the market of making a sale less likely to the person who borrowed it since he can just borrow it (and perhaps make an unactionable infringement per 17 USC 1008 IF HE COMPLIES WITH THE STATUTE FULLY AS DEFINED IN 17 USC 1001 which no one ever reads) and not have to pay to enjoy it. OTOH it's rather de minimis since the lending circle is quite small, presumably.
I think it would be fair, but it's actually a borderline case given how the test works.
That's why the example using CDs is not very good.
On the whole, it pays to look through the copyright statute (17 USC) rather than listen to what a lot of the
But it doesn't say that it's property at all. Copyright laws as a rule don't refer to the term IP. They just call it copyright.
Given that IP is a general term encompassing obviously non-property oriented fields, such as trade secrets (which aim to stem unfair competition, and are entirely unlike and unrelated to property) you're clearly misusing it.
Personally, as someone who's seriously been studying this stuff for years now, the best thing to do is not even use the term IP. If you want to discuss copyrights, or patents, or trademarks, or trade secrets, or publicity rights, or whatever, just refer to the particular thing you're talking about accurately. None of them are really related to one another -- it's a dumb idea to act as if they all are just facets of the same thing.
I can't watch Temptation Island and then tell their advertisers to give their money to C-Span.
I'd be willing to watch Temptation Island, DC, where all the participants were members of Congress.
I wouldn't be very tempted myself, however.
Apple mice use one button because their research indicates
Sadly, there was never any research. It was more of an informal observation made by Jef Raskin, way, way, back when he saw users getting confused using the three button mice on the Xerox Alto.
And remember, the behavior of buttons back then was quite different to what we're used to now. There were no double clicks. There was no dragging. Naming conventions were awful (they were called red, yellow, and blue, but the buttons were in fact all black, and the screen wasn't in color). And the buttons all did different things in different programs, instead of exhibiting some standard behavior.
I don't think it was an awful decision -- Windows didn't significantly use the second button until the Win95 era. And the work done in making the first button very useful has been copied pretty much everywhere.
Though of course the anecdotes of people being confused by multiple buttons have not gone away, and I've seen it before. Both in terms of users knowing which button to push (primary or secondary) but forgetting which is left or right or accidently pressing the wrong one, and in terms of users not knowing which button to push.
At the very least, making the buttons seriously distinct should be on the agenda. Left and right isn't enough. They should be distinguished in terms of position, shape, size, resistance to pressure, texture, color, be given more prominent names, and have labels with those names on the mouse. Everything to make sure that people aren't going to mix them up.
I don't pay a fee when someone knocks on my door. I don't pay the Post Office when they deliver an ad to me. I don't pay the phone company when a telemarketer calls.
There's still a cost, however. At a minimum there's a cost in time and perhaps even psychic well-being in receiving this stuff if only to dispose of it as quickly as possible. Yet, it's a cost that the recipient winds up having to bear.
Someone who is sending spam e-mail with a forged, invalid return address which links to a domain registered with falsified contact information is not trying to initiate "discourse with strangers."
Well, I'd say they are. However, due to the presence of fraudulent information in the spam -- the false return address and contact information -- I'd support recipients having a legal cause of action against such a spammer.
Not because it's spam, but because it's false spam.
The content of the speech is key.
Yeah, and restrictions by the government based upon content are the hardest to enforce, short of prior restraints which are just about impossible.
Commercial speech and non-commercial speech are different.
True, but it's an increasingly pointless distinction.
That's why it is illegal for telemarketers to call you at 11 o'clock at night while your friend can call anytime. It's why adult advertising sent through the mail must be marked that way.
Well, it's not inherently illegal for telemarketers to call you late at night. First, there would have to be a law against it. Without such a law, it's fine for them to do so. And when there is such a law, it is inevitably a time/place/manner restriction. That is, such a law absolutely cannot be used to prevent a telemarketer calling at all, only to channel their calls to acceptable times when they still have a chance of reaching someone. I'd suspect that given the right circumstances (e.g. a night worker who's only awake and at home outside of regular hours) that it could nevertheless be skirted around since t/p/m restrictions aren't allowed to ban speech.
As for adult advertising, I've never gotten any, but it's surprising that it has to be marked. What's your support for this?
The only commercial advertising which should be legal via e-mail is that to which the recipient has opted in. What you are advocating is assuming that the recipient wants their bandwidth and storage used for someone else's ad unless they opt out.
You're right; I believe that the first amendment basically demands that we have an opt-out assumption.
Where the spam originates is immaterial. If some sleazeball in North Carolina pays some ISP in China to host his herbal Viagra site and pays some Brazillian ISP to send the spam, he's still the one responsible for it and would still be answerable under just about any well-crafted law. And the vast majority of spam received by Americans is spam sent from other Americans, whether through US ISPs or overseas ISPs.
Well, discovery might prove to be a serious problem, but assuming that you're right, perhaps it wouldn't be as big of an issue as I'd thought.
So all you are in favor of is requiring a valid remove address? That's assinine. Opt-out is a favorite of spammers everywhere because it gives each and every spammer the opportunity to spam you and puts the burden on you to tell dozens, if not hundreds, of them every week that you don't want any more spam from them.
No. I'm in favor of requiring that the entire spam be truthful in all respects, including the claims made in the spam.
At any rate, as the FTC list shows us, it ought to be possible to create a system of preemptive en masse opt-outs (much like a no solicitors sign) rather than having to do it on an individual basis, curing the problem you've identified.
Indeed, the parallel is really there -- if you didn't have a sign, you'd have to tell each individual door to door salesman to leave. Presumpt
They clog up my inbox, potentially drowning legitimate mail. It's like phone salesmen calling you up all the time so no real calls can get through.
And yet, I'm not forced to pick up the phone. Or even have a phone. Or listen to them once I do pick up the phone. There's still no compulsion.
I think you would find that somewhat annoying. No, you would find it intolerable and would want it to stop immediately.
Actually I find all advertising intolerable. This includes spam, printed ads, billboards, banner ads, junk mail, and anything but the most subtle logos on products including clothes. I have difficulty shopping for sneakers because I won't buy any with prominent logos. (or hideous colors)
Remember how back in the 80's generic products were sold typically in plain white packaging with plain black text indicating merely what the product was? (this was typically food products in grocery stores) I'd be perfectly happy if the whole world were like that. You can't imagine how much I hate advertisements of any stripe.
I'd really like to simply filter my perceptions of the world so that I could live ad-free, forever.
First, spammers do everything they can to avoid spam filters, forcing their way into your mailbox.
That's allowed. I get junk mail in plain envelopes from time to time -- as long as it doesn't try to deceptively look like something other than an ad, it doesn't have to look like any particular ad.
Also, not everyone has the luxury of being able to filter mail, and has to read through every single mail, as they cannot afford deleting legitimate mail.
Maybe, but that's probably not that common, and at any rate not a sufficient concern to justify the government stepping in.
But you cannot force anyone to listen, which is what spammers are trying to do.
Except they're not. Sending me a whole truck full of junk mail does not mean that I am being forced to read it. Volume does not equal compulsion.
Irrelevant. They represent a business selling a product. Their rights as individuals would not be affected negatively by anti-spam laws.
Not in the least. If I send a spam to everyone I know and even a lot of people I don't telling them to buy a widget, that doesn't mean I'm a representative of the widget company. Similarly, there is such a thing as political spam. And spam for charitable organizations.
And at any rate, businesses do enjoy significant first amendment rights, so your point is irrelevant anyhow.
No, because if the recipient asked to receive it, it is no longer spam.
I didn't say that. I said the recipient wanted to receive it. I didn't say he announced that. Some people like getting unsolicited catalogs or things in the mail. There's certainly plenty of people who like the Publisher's Clearinghouse junk mail but who did not sign up for it.
Spam costs us time and money, and it is forced down our throats. That is why it has to be banned.
Spam probably does not cost a sufficient amount of time or money to justify the evil of government intrusion into the realm of free speech, is not forced down anyone's throat as shown above, and is fundementally an aspect of free speech in a free society.
No one ever said that living in a free society would be all sweetness and light. You're going to have to tolerate the fact that other people who you don't like are here too, and are just as free.
Similarly, the Mafia qualifies as an unpopular minority. We must therefore defend its right to bust kneecaps and force "protection" money out of people.
Battery certainly isn't a free speech issue. It's insane to even say that it is.
Extortion _is_ actually, and has to undergo careful analysis (under Brandenberg) to be made illegal. And it is, but it's certainly nothing like spam. I've never gotten a spam that said 'read this or we'll burn down your dog,' have you?
Banning spam means banning forced speech.
... Spam is commercial speech.
No, I think you've made a mistake here.
Generally when people talk about forced, or compelled speech, they mean speech that people are forced to say whether or not they actually want to.
For example, in 1942, the Supreme Court decided that it was unconstitutional to force schoolchildren to recite the pledge of allegience. (The recent Newdow case out west was actually about whether they could be pressured into saying it due to teachers being required to recite it, which would tend to lead the kids on)
AFAIK the government is not forcing spammers to send spam.
So I think that what you meant was that people are forced to receive or read or respond in some way to the spam. (either literally, or by doing what the spam advocates)
But I don't believe that any of those contentions are true -- people do not have to receive spam. You can whitelist, blacklist, blackhole servers that send spam, or simply pull the plug on your email. Likewise, no one is compelled by the government to read or do anything in response to spam.
Spam is all about forcing people to listen to you.
Like I said, it's not. All the spammers in the world can't actually force me to read my email. They can _send_ me email, but they're capable of guaranteeing nothing further. As is well known, spam can be blocked or ignored at any time after it has been sent.
Spam is not free speech.
Commercial speech is free speech.
Banning spam does not affect people negatively, it affects companies that make a living by forcing people to receive mail from them.
You forget that 1) there are individual people that send spam as well, who would be affected negatively, 2) bans on spam could be dangerously far-reaching which is why whenever restrictions on speech appear, we must be extraordinarily cautious to ensure that they're benign, or at least as minimally malignant as possible, 3) companies have free speech rights as well, 4) the rights of individual recipients who WANT to receive spam (and spammers wouldn't spam if someone were not responding positively to it) would be harmed if you banned spam.
Just because _you_ don't like spam, or even because _most people_ don't like spam is not itself enough reason to ban it.
The first amendment is all about protecting unpopular minorities. Spammers qualify as one.
The people have spoken in survey after survey and said that there is no implied permission to spam them.
Well, I'd like to see the surveys, but at any rate, you're making the same mistake again. If people say there is no permission, that's explicit. So even if there is such a survey as you describe, it's flawed, because the answer is to a different question.
A better question would probably be: In general, are people allowed to initiate discourse via email with strangers, or must the stranger invite them to start sending email first?
Which of course leads to the obvious problem with a lack of implied permission -- if they're strangers, wouldn't it basically be impossible to ever have any discourse? The person who wants to talk cannot until invited to do so, and the person who can make the invitation doesn't know anyone wants to talk to him until he's told about it!
It costs me nothing for someone to deliver their message by knocking at my door, calling me on the phone, or sending me conventional mail.
This is not true.
You also ignore the restrictions placed on commercial speech of the specific types that you mention. If I don't want a salesman knocking at my door, I can inform them of that in a legally binding way with "no soliciting" and "no trespassing" signs. If I don't want a phone solicitor to call me, I can put myself on the recently-enacted "do not call" list -- or I can choose to tell a specific telephone solicitor to put me on their firm's do-not-call list. If I don't want sexually explicit ads mailed to me via conventional mail, I can fill out a Form 1500, (Application for Listing and/or Prohibitory Order). I can also designate any sender from whom I wish to receive no further mail.
And you ignore that these are not governmental restrictions. Although enforced by the government, they are PRIVATE restrictions. That is, only the private person being communicated to can initiate these restrictions, and furthermore they must take affirmative action to do so -- by putting up a sign, or signing up on a list, or filling out a form, or telling people to go away.
I think that this is PERFECTLY acceptable with regards to spam. And I have NO PROBLEM with the government providing a cause of action for people who give proper notice (what constitutes proper notice is an interesting question -- it's got to be something the spammer actually knows or reasonably ought to be aware of -- trivial forms of notice are insufficient) to spammers but where that notice is ignored.
And broad governmental restrictions on fraudulent or harassing spam are also things that I endorse.
But none of these is a broad ban against all spam. Truthful, non harassing spam that is not affirmatively rejected by the recipient should be entirely legal. There's no reason to ban it! But whenever people say 'all spam should be banned' they're necessarily including this, and that means they've gone too far.
However, I will say that due to the possibility of spam originating overseas, it may be impossible in practice to get rid of it. A regulation on speech is already a bad thing no matter what, and can at best only be balanced out by some good that results from it. If the situation wouldn't change because spammers successfully avoid our jurisdiction over them, our regulations are probably inappropriate since they're causing harm without also having some good result.
Codify the majority belief that there is no implied permission to spam. Craft a law which recognizes that recipients bear the cost of spam and require that senders have explicit permission to send ads to each recipient. Require that commercial e-mail have a valid return address, that it be identified via a header as advertising, and that there be a valid "remove" address.
I don't believe that either of the first two aspects of your proposal would survive scrutiny.
However, I'm fully supportive of the last part, with the exception that spam should NOT be
Well, there are some interesting challenges that can be made to the FTC's Do Not Call list.
Overall though, I support it, but I do not believe that it is a government restriction on speech. Fundementally, it is a method for individuals to provide notice to telemarketers to not call them, much like in the real world individuals can put up 'no solicitors' signs but the government cannot ban solicitors of its own accord. (and there have been cases to that effect)
I'm very much in favor of PRIVATE action -- such as providing notice -- to stop spam. I don't think a 'do not spam' list would work, due to the difficulty of international litigation, but then that same caveat applies to any proposed spam regulation!
You also pretend to be a lawyer, but can't understand even the basics of the law. I'm betting your a DMA puppet.
I don't pretend to be a lawyer. My sig here makes that awfully clear. However, if all goes well, I expect that I _will_ be a lawyer sometime next year. Gotta finish up my last semester, then take the bar. I do think that I have a decent understanding of the law though, but I'm sure it could be improved.
And I'm not a DMA puppet either. I just have a strong, sincere belief in the importance of the freedom of speech. No matter how distasteful I find spammers (in fact I probably hate all advertising, everywhere, more than most people here -- you should see how agressive my web filters are) I do respect that they have a right to speak that the government should not casually interfere with.
Actually there is a cost associated in both of those examples.
Who do you think pays for the bandwidth used by spammers who send mail to your ISP's users? The ISP - and then they pass the costs on to you and the other subscribers.
My costs have not wavered in years, however, from a wide variety of local ISPs around the country. The stability in ISP costs seems to belie your position.
That's analogous to saying that you knew that there were costs associated with owning a car so you have no right to complain when someone siphons gas out of your tank every night. No, that's a non sequitur.
My server is my private property. I paid for it. I maintain it. I pay for the connection. It's my decision who I authorize to use it.
All true.
There is not any kind of implied permission for every dickhead sleazy con artist who wants to tell me about penis enlarging ripoffs and debt consolidation scams to use my bandwidth, server, and storage to do so.
No. You don't get to decide whether or not there is implied permission. Other people do. This is why it often behooves people to be explicit.
What you can do is explicitly revoke implied permission -- but you have no say in whether in society as a whole there is implied permission or not.
But there seems to be. Let's look at other forms of commercial communication: Salesmen are allowed to trespass on your property and knock at your door to sell you things; Phone solicitors can call you to sell you things; Junk mailers can mail you to sell you things.
Due to how our society operates, it's implied that they're allowed to open communication with you.
If you actively revoke that societally-imposed implicit authorization, then they no longer are allowed. (at least with regards to you)
There's a good analogy in tort law. It is absolutely illegal for people to touch you without your permission, no matter how slight it might be. BUT if you were, say, on a crowded subway car, it's perfectly okay for people to jostle you in the absense of a stated preference otherwise, since this is part and parcel of our society -- we accept people will bump into us on the Green Line.
Having an email address is an invitation to the world to email you; it's up to you to inform them otherwise.
Nor is there permission for them to harvest e-mail addresses off of my web page and, in fact, it clearly states that such use is prohibited.
I seriously doubt that that one is enforcable. And I think that it is probably best if it is not, since it is part of the recent regime of adhesive contracts that frankly has been amazingly annoying, if not harmful to numerous aspects of freedom.
I find it rather suspicious how you always come down on the side of spammers
That's because I always come down on the side of free speech. I hate spammers, but I defend their free speech rights. I hate Illinois Nazis too, but I'd defend their free speech rights as well.
Figure out a way to get rid of spam that doesn't jeopardize free speech, and I'd be all for it. So far we have 'no spam' notices, laws against fraud, filtering, etc. If you've got something better up your sleeve, now's a good time to let us in on it.
Ah, okay, I see your mistake.
You're confusing speech with conduct associated with speech or the effect of speech.
The only form of speech per se that is unprotected AFAIK is obscenity. Everything else that suffers a limit is by virtue of some aspect of the overall situation that is not in fact speech, just speech-related.
Grafitti isn't barred on the basis of the _content_. It's legal to rent a billboard and put up your grafitti there. We're regulating the damage done to other people's property when we regulate grafitti. Doing it in a different manner wouldn't be objectionable.
Causing a public disturbance is illegal likewise because you're causing a public disturbance. The words themselves aren't at issue. (and incidentally the fire example is awful, and no longer good law, and you got it wrong) Plus it's not that easy to be successfully charged under this if all you did was speak. Incitement is a tough charge.
And being insulting to people is NOT illegal, all else being equal. That was settled quite some time ago in the Cohen case, wherein a guy wore a jacket that read "Fuck the draft" on it and when prosecuted for violating obscenity statutes won and had the statutes overturned since the government interest in keeping people from being insulted is puny compared to the first amendment.
(Fighting words would fall under the incitement thing though, since again, you're trying to pick a fight -- the words aren't important, it's the context and the intended and likely results)
Advertisements as a rule don't rise anywhere near to the level of being non protected speech. There is a lesser amount of protection, but it's not much lesser, and the gap has been closing for a long time now. Basically ads can't be fraudulent (which most spam is, which means we don't need an anti-spam law as long as we can operate under an anti-fraud theory -- anti-spam laws would in fact only be good for _truthful_ spam, which really shouldn't be banned), and in some cases must include disclosures of additional information. (e.g. with food, drugs, etc) There's little else that springs to mind.
Well, it may not be sufficiently clear notice. A real-world no solicitors sign is great for keeping out door-to-door salesmen, but it has no effect unless the salesmen are actually aware of it, or unless the sign is sufficiently prominent so that they should have been aware of it. Your thing is probably the best that can be done under the circumstances, but I honestly don't know whether or not it's good enough.
However, let's assume for the sake of argument that it is. In that case I have absolutely _no_ problem with laws prohibiting their behavior, or your seeking recourse against them.
But I think that that the burden does lie on the recipient to indicate that he doesn't want further communications. Spam cannot simply be banned en masse. Since we don't like fraud, fraudulent spam can be. Since we don't like harassment, harassing spam can be. And since we don't like people who violate 'no further communication' notices (where relevant -- there's far less you can do about being solicited if you're out in public, since solicitors have a right to be there and to speak there), that sort of spam can be.
That's certainly a lot of spam, but it is merely a subset of all spam.
If you get truthful, non-harassing spam in the absence of your telling spammers to leave you alone -- that can't be banned, even if it's bothersome.
Of course, there is an issue of it being potentially harmful to free speech to be able to arbitrarily ban people from communicating with you on pain of penalties. It's not out of the realm of possibility that it's a good idea for communication to be, on the whole, unrestricted from government intervention. So it probably is a good idea to remain cautious, and err on the side of spam lest we do something bad. Spam at least we know we can live with and still privately filter.
advertising is not speech
Yes it is. It's speech intended to get you to buy something, generally. It's hardly distinguishable between purely political speech which is often intended to get you to vote for someone.
Feel free to make your assertion, but you'd back it up a lot more by providing some sort of legal basis for it, since that's what's important here, basically. But you won't find one since no one knowledgable about the subject really agrees with you.
I really hate the fire example.
Aside from the fact that the case it dates back to is no longer good law, people always, always fuck it up. Go read Brandenburg.
For example, you fucked it up. It's perfectly legal, in fact it is ADMIRABLE, to yell 'fire' in a crowded theater. If there's a fire.
the government preventing someone else's "communication" from costing us money
First, I doubt that there's any material cost to you.
Second, everyone who has resources consumed by spam can pretty safely be said to have known that there were costs involved in being connected to the network -- if they proceeded, they assumed those costs. It's what one of my profs refers to as the Superchicken rule. Postal mail and telephones cost the user money as well. When you get a telemarketing call, or junk mail, it costs you money. If you don't like it, don't receive mail or have a phone.
A marketer's right to push his information into my living room ends at my doorstep, whether it be physical or electronic.
This is true. However, this is either inapplicable to email or places email outside of your door. Certainly the analogy is lacking; email doesn't work like a house.
This isn't about freedom of speech in this case at all, as it's been determined before that commercial entities have a very limited right to freedom of speech.
That's flatly untrue. Commercial speech has been acquiring more and more parity with regards to first amendment protections for decades. At this point the largest limit specifically to commercial speech are compelled disclosures (e.g. nutritional information on food). Other limits are of general application, such as that against fraud.
Nothing in the Constitution compels us to listen to or view any unwanted communication
That's true. But that doesn't mean a hell of a lot. Spammers cannot force you to read spam. That is not the same as saying that spammers cannot SEND spam.
As the Rowan court says In this case the mailer's right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer.
In sum: if you don't want spam, it's up to you to hold yourself out as not wanting spam so that spammers know not to send you spam.
If you don't do that, all else being equal, you're out of luck.
Well, if I remember my restatement correctly, they can sort-of enter into binding contracts. Just not binding against them, should they decide later to get out of it (and probably return what they got from it). It's perfectly binding the other way though! Still, it's enough to deter most people from bothering.
At any rate, since IIRC parents aren't responsible for the torts of their kids, and this probably qualifies, the little girl might as well declare bankruptcy. She has no assets to speak of, and by the time she turns 18 enough time will have passed that it'll be irrelevant to her.
Fair Use does NOT, and has NEVER allowed you to distribute copyrighted works in their entirety.
Yes it does.
In fact, it's possible for fair use to allow you to distribute a copy, in its entirety, to every man, woman, and child, and write it on the surface of the Moon with a big laser for good measure.
Fair use might also deny people from "excerpt[ing] portions of a copywritten [sic] work for purposes of review or criticism, or for academic purposes."
It depends.
The one and only absolute about fair use is that there are no absolutes.
EVERY SINGLE ALLEGED FAIR USE MUST BE INDEPENDENTLY JUDGED ACCORDING TO THE JUDICIAL AND STATUTORY CRITERIA FOR FAIR USES, BASED ON THE FACTS SPECIFIC TO THAT USE.
So given the right set of circumstances, it's entirely possible to distribute complete copies. Or to not be allowed to copy just a little bit for a review.
It depends on the situation at hand.
Feh. You get kudos for looking it up in the OED. It's the dictionary that God would use, if he weren't omniscient.
But your kudos are immediately stripped away from you for not looking up variants of 'piracy' that might predate it.
AFAIK the earliest use of any sort of piratical word to describe unauthorized copying is from 1668, calling them 'land-pirats.' Note that copyrights didn't appear until 1710.
I'm afraid this is highly illogical.
Songs aren't property, and copyrights aren't property rights.
So while your argument is great in the right arena, it's misapplied here.
Rather, what's happening is that while songs are not ownable at all, RIAA members hold copyrights on those songs. While copyright law does not by any means prevent non-copyright holders from distributing copyrighted works via any medium no matter what, in some cases -- perhaps many cases -- it does. It's impossible to steal a song, and it's effectively impossible to steal a copyright. (at least I can't reckon how one would) But it is possible to impermissibly exercise rights that copyright law permits copyright holders to bar other people from exercising. The act of ignoring the copyright holder's desire to exclude one from exercising those rights is an infringement on the copyright holder's right to exclude.
Remember kids, when discussing nonproperty rights, 'infringe' is typically the right word to use, e.g. 'the government made my religion illegal, infringing on my right to worship as I see fit.'
Incidentally, even if we _did_ treat copyrights as property rights, which we don't, there are STILL significant limits on it. Property rights are equally as artificial as copyrights, and numerous doctrines exist for limiting the scope of such rights. P2P sharers would still have arguments available to them to defend their behavior, and might even win.