Sadly, that's grossly unconstitutional. If you use it forever -- you're in violation of the term limit.
Besides which, I don't like it. I want the public domain to contain something other than crap. This means works that are still relevant to society. It also means that creators will have to REALLY create good works, since they'll have to compete with material that people enjoy as well. This only strengthens our culture. (and further strengthens, over time, the p.d.)
Personally, I'd like terms in the neighborhood of 20 years tops (less for some things if the work 'ages' more rapidly, e.g. software) so that my generation can pay for a work, but we can pass it on to our children unencumbered.
Think about that for a minute, even a critic of today's ridiculous, century-long copyright laws, agrees that, left unchecked, piracy will lead to fewer books, movies, video games, albums, etc. being produced. That's bad.
No it is not.
The public has TWO competing interests in establishing a copyright system. You've identified half of the first -- a greater volume of original works.
You utterly failed to realize that the public is also interested in the production of more derivative works (the other half of the first interest), and the second interest, totally unrestricted use (inclusive of copying, basing derivative works thereupon, merely enjoying, etc.) of all of those works.
If we only cared about more volume of original works, we would never have created a copyright system where the terms expire, or where fair use or first sale, etc. were protected constitutionally. That we did not clearly indicates that there is more to the situation.
So -- if we decrease copyright protections, we absolutely face the possibility of a reduction in original works. BUT if there is a commesurate increase in derivative works and in freedom to use works, the public may very well be BETTER OFF, despite fewer works being created.
Even if we didn't have copyright at all, original works would still be created (and the derivative and use goals would be 100% satisfied). Countless centuries of creativity prior to the passage of the first copyright laws in the 18th century attest to that.
As a producer of such copyrighted material (a programmer with delusions of one day being a novelist), I expect to receive compensation for what I've produced and will produce. If I can't expect compensation I'll decamp to another profession, and I won't be the only one either.
Which is fine. Firstly, a system that favored artists at the expense of the public is undesirable -- the public comes first. This is rather as though you said that unless you have the right to have a toxic waste dump next to a school, you'll do something else, like sell widgets. Well, the public measures its desire for a dump and whatever benefits it brings against the harms it also brings -- it may very well be that we don't want you coding or writing, because the cost is too high, you see.
And frankly, you have no right to expect crap. What if you just suck? You still think that you deserve to make a living? Even at the most extreme, we're only giving you a chance. Success is by no means guaranteed. If making money is that important to you, I would suggest abandoning your current line of work and going into investment banking or something.
There is NO, REPEAT NO, reason whatsoever to 'safeguard the profits' of content industries. The only pressing need is to safeguard the public interest. This almost certainly means having _a_ copyright system. But it falls way, way, short of helping authors to the detriment of the public, which is the current situation, and wouldn't even change under this proposal.
Shorter terms are needed AS WELL AS a strengthening of fair use and public domain rights. (i.e. by not giving copyrights to works that are copyprotected in any fashion whatsoever, since they attempt to cheat the public domain out of its due)
If the author were that concerned with making a fortune, he should have bought lotto tickets. He'd have better odds that way.
Furthermore, if your intent is to provide for people in their old age, or help support widows and orphans, then there are a million better ways to do so, such as pensions, insurance, or social security. Given that it's such a crap shoot as to whether or not the author's work will EVER EVER make money, there can be no reasonable reliance on copyright as a source of income.
No matter how strong copyrights are, it will never change the fact that most creative work is crap and flops on the marketplace permanently. Honestly -- outside of a few big name authors who are still famous today, how much stuff from the 19th century do you still read? Hardly any. Because you couldn't give a rat's ass.
It is the acme of idiocy to try to promote copyrights as a means of long-term income. Nor was it ever intended to be. It only has to be enough to get the author to create the work in the first place. Anything more is, frankly, the market being inefficient and thus undesirable from a policy perspective.
Yeah, but why assume that a copyright, patent, or trademark is private property for 5th Amendment purposes? If it were, it would be pretty stupid that it must ultimately expire, or could be revoked under certain circumstances, or that "easements" of a sort can be imposed on it.
I don't think that a retroactive revocation would qualify as a taking.
You're blurring or expanding the discussion by introducing the unwanted content argument.
A restriction on spam is arguably not content neutral. Therefore it will be reviewed in such a way that if the restriction is overbroad and would bar content that is not spam, or is underbroad, and would not bar content that is spam -- it is unconstitutional.
Thus it is of critical importance that such a restriction touch all and only spam, or else it would inevitably be struck down.
If the problem identified is too much traffic or too much time spent pruning one's in box, a restriction on spam alone as you have defined it, is underinclusive -- unwanted forwarded joke traffic, etc. pose the same problems. A ban on spam solves nothing. This is fatal. The ban is also underinclusive because it will have zero effect on stemming the tide of international spam.
While you might defend anti spam laws as being aimed at their collateral effects, the truth is that the motivation for a ban is a dislike for the crass commercial content of the ads. See for example, the Tinker case, where a school sought to ban armbands protesting the Vietnamese War. The school claimed content-neutrality, in seeking to avoid disruption. But truly they only cared about anti-war sentiment, and this was indicated by not banning other potentially disruptive ideological symbols among students.
Commercial speech is not a free speech issue, and niether is spam. There was recently a Nike case about this issue.
Your confidence in the Nike case is misplaced -- it has been granted cert by the S.Ct. and may be overturned. That case is effectively out of play since no one knows what the resolution will be.
Instead consider the current line of commercial speech cases: Virginia Pharmacy (holding that commercial speech is entitled to first amendment protection because of society's interest in learning about commercial information); Linmark (holding that the govt. has no interest in keeping people ignorant, i.e. from learning truthful commercial information); Central Hudson (that the govt. can only regulate where the regulation directly advances a substantial govt. interest, reasonably tailored to achieve that interest).
Among other things, this demands that the government have a reasonable chance of success at achieving their aim, which is utterly lacking in the case of spam. Lorillard Tobacco.
No such notice will ever be binding on the spammer
The only way that a no solicitation notice in real space is binding on someone is that you post it, they violate it, and you bring suit or file charges criminally for the violation.
Likewise, if you think that where you reasonably notified spammers that you don't want spam will be violated, your recourse is IDENTICAL.
No one sues solicitors who respect no solicitation signs, because the situation never arises. Your claim implies that you could never effectively stop spam through legal means (which I agree with), so it's useless to try. Nevertheless, that means that the penalties you mention later would be ineffective as well. Either it works for both or it works for neither. You can't have it in the middle.
The regulation can have the effect of basically making spam go away. If the legimate spam I describe above was required to include an additional mail header to identify it as spam, or some tag in the subject line -- the regulation would be valid -- and the net effect is that spam would disappear.
A law aimed at such an effect is unconstitutional. Even the most restrictive t/p/m regulation HAS to let the speech come through sometime, someplace, somehow.
To make an analogy, you are saying that if someone at your dinner table brought up a disgusting subject that you'd just kill them. I'm saying that I might tell them not to discuss that while people are eating, but that they certainly could discuss it at a more opportune time.
The tagging regulation just will not be legal PRECISELY because it would be effective. It's too effective. Dangerously so.
If the SMTP server offers a NO-SPAM notice, in a standardized fashion, spammers could be legally required to honor it.
That could work. Try that instead.
I'm in fact open to other points of view. That doesn't mean that anyone should have to accept spam.
Spam, first, is content neutral. There have been commercial spams, but there have also been religious and political spams. I hate getting forwarded unsolicited jokes, I'd call them spam-like at the least, and they're expressive speech too. Banning spam bans a great deal of stuff, since spam is not well-defined.
But even if it IS well-defined, the point of view that you need to Make Money Now is still a competing point of view. The Court has been protecting commercial speech very nearly as much as any other ordinary type for decades, because it recognizes that the mere commercial nature of speech doesn't exclude it from the aptly named marketplace of ideas.
[Minimal expense of deleting spam] is irrelevant
I forget which, but one S.Ct. case mentioned that Free Speech meant that people would have to manually take unwanted mail from the mailbox to the trash can, and that it was an unavoidable aspect of our freedoms, and not an unbearable burden for the benefits we receieve.
That's how it's relevant.
Incidentally, note that I hate spam. I hate all advertising, much more than most people. I've filtered my 'net experience so greatly that I hardly get any ads at all.
BUT what I personally do in my private life doesn't, I feel, give me the right to go around telling other people that they cannot say things merely because I don't like it.
The burden on avoiding unwanted content is on the individual; the state is not a valid mechanism for assisting him, saving in preserving his ability to so escape it where not burdensome to free speech.
Who's saying you have to be harrassed. If you don't want spam then you should give spammers a reasonable notice not to give you any. This is akin to posting a 'no soliciting' sign -- it only works if you actually post it, and solicitors could reasonably be expected to see it.
Managing to post such a sign on your email account is, of course, an exercise for the reader.
HOWEVER, this does not stop solicitation generally. It cannot.
It is what's called a time, place, or manner restriction. A law could be passed restricting telemarketing from certain hours, but could NOT ban it or have the effect of banning it altogether.
You could prevent people from soliciting at your house, but not when you're out walking in public.
One of the consequences of a free society is that you are going to have to -- unless you remove yourself from it by living reclusively -- be exposed to competing points of view. This is not necessarily a bad thing; and it's certainly better than any alternative I can think of.
Can spammers make you listen? No. I've never said so. But that does NOT mean that you can make them stop spamming altogether so that you don't have to be troubled to not listen.
As for expense, it's minimal. I would argue that the effort spent in throwing out junk mail is worth more. This is by no means the situation with faxes where paper and toner are being consumed, so don't go pretending that it is.
You do realize that a) the case that made that point is no longer good law (it's been overtaken by Brandenberg), and b) was making a point about speech that very directly and unusually threatened people's lives, as opposed to be being a mere nuisance.
I really loathe the shouting fire thing because it is no longer meaningful. And also because people always leave out the 'falsely' and forget what a firetrap a theather was in the early 20th century.
The PROPER law would be: you cannot say something that 1) is intended as an incitement to unlawful action, if 2) such action is likely, and 3) imminent.
Ultimately this is what the governed want.
That's by far the worst argument you could have possibly made. The governed have also wanted, at various times, only protestantism to be practiced, unpatriotic speech to be banned, competing political parties to be harassed, etc.
The entire POINT of the First Amendment is to remove the ability to limit important freedoms of minorities from the hands of majorities. We could hold a vote in this country right now on whether pornography should be outlawed and there'd be a good chance that people would vote for it to be. (if only because whatever their actual feelings, people would be concerned on how their neighbors perceived them)
The effect of the First Amendment is basically to say 'tough titty.'
This is an absolutely great thing. The fact that you might dislike or even be offended by some of the speech that others thus can freely direct at you is irrelevant with regards to preventing them from speaking.
A less ideal, but equally effective solution would be to simply require spam to be flagged as such, with a criminal penalty attached. The latter idea would still cost me my bandwidth, plus the cost of supporting all of the bandwidth in the infrastructure, but it would have the same effect of completely eliminating spam. (Why? Because everyone would universally filter it, making it unprofitable.)
And that last sentence is precisely why I think that government-mandated spam labeling would be unconstitutional. The government cannot deliberately use private action as a catspaw for acts that would be unconstitutional if it did them itself, as banning spam altogether certainly would be.
Speech CANNOT be banned (barring insanely extreme circumstances almost never seen, and a few exceptions unhelpful to you) based on its CONTENT. This is fundamental. It has apparently escaped you.
Thus spam has to remain unlabeled. It can be regulated as for _fraud_, i.e. in that it cannot be actively misleading or untruthful, but that doesn't require that it actually announce itself as spam either. Only that it not claim to be anything else, not that it need claim anything at all. And this is beyond the level of a mere hard sell, or sales puffery. Libel could also be regulated, but that will be ineffectual against most spam.
Situations where it might need to bear other labels (e.g. FDA nutritional information) are not targeted at it as spam, nor are they intended to chill speech, as you intend. They're a fairly rare exercise of a police power (i.e. promoting public health and safety) and couldn't expand too much anyway. This is about the furthest that state imposition on commercial speech can manage constitutionally, and it's still worth arguing about to make sure that it doesn't become dangerous.
Besides which, your solution is worthless even if it were implemented. Spammers will pick up and move to other parts of the world more freedom-loving than an America that would kick them out would be, send it in, and you'd never stop them through these means without attempting censorship on the scale of China. Would you sue ISPs for blindly carrying that traffic -- or would you prefer the costs and architecture changes and privacy infringements to get them to read your mail before passing it on?
No, no. Private filters are almost certainly fine. I'm saying that the government mandating labels on spam so as to achieve the effect of prohibiting that speech through private means might not be.
If you want to filter spam based upon its content sans mandated labeling, go ahead.
If governmental authority is wholly uninvolved (i.e. not even invoked by private actors), there's no first amendment issue.
Well, I'd argue that content based restrictions on speech are fairly limited. Yes, the US is fairly puritanical with regards to obscenity, but beyond that and fairly minor stuff, e.g. libel, we're pretty good. What you seem to be objecting to is more of what happens on the ground. But that's like saying that we allow criminals free reign because crime _occurs_. You're forgetting about remedial action. I do read the New McCarthyism page, and I don't care for much of what I see -- but if the alleged victims don't pursue a remedy for the wrongs inflicted on them there's little to be done. I'd like it if people acted better, but that's not the end of things.
The fact that a law exists in no way establishes its constitutionality. Jim Crowe acts were on the books all throughout the south (and beyond) for decades, but guess what they turned out to be?
As noted earlier and elsewhere, I'm aware of the issue of spam consuming other resources, and that it might be a possible grounds for avoiding regulation being overturned, but it also might not be enough; free speech is a pretty damn weighty issue.
I'm certainly absolutely unprepared to say that speech should only be allowed if the speaker has to pay to deliver it! That's extremely chilling, and skews speech radically towards the wealthy, who already have plenty of benefits.
The First Amendment DOES allow you to speak at the cost of others, the issue is the weighing of the cost v. the importance of free speech.
You also have to pay to maintain a mailbox and address to receive mail which hasn't had any effect on junk mail.
The hijacking of resouces is a valid issue, but AFAICT it's rare in the U.S. at this point, and while it may negatively effect a small number of people, the effect on spammers and people who want to receive the spam is likely larger if there are more of them. Besides which, a free speech right may be more important; it certainly would seem to be, given the low cost of any particular email even in a metered access plan.
(I know that sounds dumb, but advertising is in part protected because its useful to people to be ABLE to acquire knowledge about what's for sale, etc.)
The thing is that the disclaimers have never been capable of permitting widespread, automated, private ignorance of speech. This is a novel issue. I think that disclaimers that would have such an effect, and which would largely be mandated precisely to enable such an effect, would not pass muster.
Note, also, that there is a difference between selling cigarettes (not a free speech issue) and advertising cigarettes (a free speech issue).
The effect of the law is of importance -- even if it will largely be carried out privately.
Oh, don't get me wrong -- I agree that such a thing _is_ fraudulent, and would be perfectly acceptable to attack some _specific_ piece of spam. But all that does is urge spammers to a) not lie (though they can make a sales pitch), and b) not give you an unsubscription option. That's what I meant by it not reducing the overall volume of spam.
I've noticed that several of those I've gotten have been in the form where that's my username. It was but the work of a moment to filter. Where it's more random, I'm sure that a filter can be put together fairly easily. After all, who has comments everwhere like that, other than spammers. I'd look for, I dunno -- three comment tags that surrounded two single words, without a new line. That would probably work.
Most spam though winds up having a domain name or address in there someplace that's good enough.
Such legislation would indeed be very popular. It would also be unconstitutional, as per the first amendment.
The two types of restrictions that would seem applicable to spam that _would_ be legal would seem to be a) a requirement that they not be fraudulent, which doesn't stop the volume of spam at all, and b) time/place/manner restrictions, which might prevent you from getting spam outside of business hours, but cannot completely outlaw spam.
And, as you note, the enforcement would be extremely difficult, with no effect overseas.
Even something as seemingly trivial as requiring spam to be uniformly labeled as such is probably impermissible, precisely because automated filters would use the effect of this legislation to stop all spam, which would be denying spammers the right to send people advertisements, i.e. banning their speech due to the commercial content thereof.
Frankly, I'm not convinced that a do not call list is enforcible; I'd like to see if it's ever been tested in court. Bans to cell phones might be, due to the way the billing is handled, but only while they aren't ubiquitous. Anyone have any cites?
Annoying as spam is, it's a lot like junk mail. It is delivered to your property, it's your problem to dispose of it, but it's not burdensome to toss it in the trash, or hit delete. Just slightly annoying.
Lord knows, I hate all advertising of any kind -- but I'm not prepared to do stupid crap with significant repercussions just to get rid of it.
What about taking that feed and rebroadcasting it in real time to people. I.e. in the sense of putting up a large tv antenna, and letting an entire block of apartments hook into it via cables in the building? This _is_ rebroadcasting. But we even allow that in the US.
Rebroadcasting isn't as bad as you make it out to be. (especially since the network can simply factor in an estimation of the number of rebroadcasters into their advertising rates!)
That's the main reason that was being argued. OTOH, you've misunderstood the progress clause.
Where the framers wrote 'science' they meant knowledge, generally. The 'useful arts' are practical inventions. The language shift since 1789 has been, in this case, significant. But their meanings are clear if you look to see what those words would've meant when written, and if you look at the structure of the copyright clause -- science/useful arts -- authors/inventors -- writings/discoveries. See how the same word order is maintained?
Anyway, cartoons and songs are cultural works. There's some nuances in it, but roughly this is what copyright seeks to encourage the creation, dissemination, and use of. That they don't comply with your tastes is irrelevant. At various points in time, rock and roll, abstract art, plays, novels, movies, impressionism, etc. have all been considered crap by the stodgy members of society. Later they're embraced as being perfectly valid art forms. In that sense, copyright should be quite expansive. As long as culture benefits, it doesn't really matter _what_ culture. The First Amendment is treated similarly.
Yeah... but OTOH recall that the limited term and fair use aspects of copyright encourage the creation of fanfic (you or I can write Oz stories to our heart's content).
And also, some fanfic is actually very good. At times, superior to the original source material. If it was invariably bad, I might agree with you, but there's nothing inherent about fanfic that keeps it from being really excellent.
There's no philosophy involved. Trademarks are there to distinguish one good (or source of goods, etc.) from others.
If you let other people use it pell mell, it no longer is distinguishing anything at all, and you lose your rights to it.
Copyright doesn't work like that at all. The copyright holder absolutely does not have to pursue infringement. The worst outcome (aside from whatever impact the infringment might have) is that the infringer is allowed to do so because you've waived your remedies against him.
A smart business therefore asks not whether the use of its content is "theft," but whether the use of its content will (eventually at least) benefit it. The business of business is to make business, not to purify the world of copyright violations..."
Is it just me or doues this sound like the definition of business for it's own sake? I realize the business of business is to make profit, but that statement make it sound as if the law is a secondary concern, an inconvinience that need be followed only if you're in a good mood.
There are an incalculable number of illegal acts performed daily, both civilly and criminally. That a law is broken does NOT necessitate the exercise of remedies against the lawbreaker.
If you don't care if people infringe on your copyrighted work, you don't have to, and shouldn't have to, sue them for doing so. Just let them. It's the choice of the copyright holder, and forgiveness is absolutely an option.
I'm sorry, but I seriously doubt that preventing sales of videogames to minors is constitutional if the government legislates to that effect (though people are free to refrain if they prefer). Would you like to get into the analysis?
Slashdot Mirror
Sadly, that's grossly unconstitutional. If you use it forever -- you're in violation of the term limit.
Besides which, I don't like it. I want the public domain to contain something other than crap. This means works that are still relevant to society. It also means that creators will have to REALLY create good works, since they'll have to compete with material that people enjoy as well. This only strengthens our culture. (and further strengthens, over time, the p.d.)
Personally, I'd like terms in the neighborhood of 20 years tops (less for some things if the work 'ages' more rapidly, e.g. software) so that my generation can pay for a work, but we can pass it on to our children unencumbered.
Think about that for a minute, even a critic of today's ridiculous, century-long copyright laws, agrees that, left unchecked, piracy will lead to fewer books, movies, video games, albums, etc. being produced. That's bad.
No it is not.
The public has TWO competing interests in establishing a copyright system. You've identified half of the first -- a greater volume of original works.
You utterly failed to realize that the public is also interested in the production of more derivative works (the other half of the first interest), and the second interest, totally unrestricted use (inclusive of copying, basing derivative works thereupon, merely enjoying, etc.) of all of those works.
If we only cared about more volume of original works, we would never have created a copyright system where the terms expire, or where fair use or first sale, etc. were protected constitutionally. That we did not clearly indicates that there is more to the situation.
So -- if we decrease copyright protections, we absolutely face the possibility of a reduction in original works. BUT if there is a commesurate increase in derivative works and in freedom to use works, the public may very well be BETTER OFF, despite fewer works being created.
Even if we didn't have copyright at all, original works would still be created (and the derivative and use goals would be 100% satisfied). Countless centuries of creativity prior to the passage of the first copyright laws in the 18th century attest to that.
As a producer of such copyrighted material (a programmer with delusions of one day being a novelist), I expect to receive compensation for what I've produced and will produce. If I can't expect compensation I'll decamp to another profession, and I won't be the only one either.
Which is fine. Firstly, a system that favored artists at the expense of the public is undesirable -- the public comes first. This is rather as though you said that unless you have the right to have a toxic waste dump next to a school, you'll do something else, like sell widgets. Well, the public measures its desire for a dump and whatever benefits it brings against the harms it also brings -- it may very well be that we don't want you coding or writing, because the cost is too high, you see.
And frankly, you have no right to expect crap. What if you just suck? You still think that you deserve to make a living? Even at the most extreme, we're only giving you a chance. Success is by no means guaranteed. If making money is that important to you, I would suggest abandoning your current line of work and going into investment banking or something.
There is NO, REPEAT NO, reason whatsoever to 'safeguard the profits' of content industries. The only pressing need is to safeguard the public interest. This almost certainly means having _a_ copyright system. But it falls way, way, short of helping authors to the detriment of the public, which is the current situation, and wouldn't even change under this proposal.
Shorter terms are needed AS WELL AS a strengthening of fair use and public domain rights. (i.e. by not giving copyrights to works that are copyprotected in any fashion whatsoever, since they attempt to cheat the public domain out of its due)
If the author were that concerned with making a fortune, he should have bought lotto tickets. He'd have better odds that way.
Furthermore, if your intent is to provide for people in their old age, or help support widows and orphans, then there are a million better ways to do so, such as pensions, insurance, or social security. Given that it's such a crap shoot as to whether or not the author's work will EVER EVER make money, there can be no reasonable reliance on copyright as a source of income.
No matter how strong copyrights are, it will never change the fact that most creative work is crap and flops on the marketplace permanently. Honestly -- outside of a few big name authors who are still famous today, how much stuff from the 19th century do you still read? Hardly any. Because you couldn't give a rat's ass.
It is the acme of idiocy to try to promote copyrights as a means of long-term income. Nor was it ever intended to be. It only has to be enough to get the author to create the work in the first place. Anything more is, frankly, the market being inefficient and thus undesirable from a policy perspective.
Yeah, but why assume that a copyright, patent, or trademark is private property for 5th Amendment purposes? If it were, it would be pretty stupid that it must ultimately expire, or could be revoked under certain circumstances, or that "easements" of a sort can be imposed on it.
I don't think that a retroactive revocation would qualify as a taking.
You're blurring or expanding the discussion by introducing the unwanted content argument.
A restriction on spam is arguably not content neutral. Therefore it will be reviewed in such a way that if the restriction is overbroad and would bar content that is not spam, or is underbroad, and would not bar content that is spam -- it is unconstitutional.
Thus it is of critical importance that such a restriction touch all and only spam, or else it would inevitably be struck down.
If the problem identified is too much traffic or too much time spent pruning one's in box, a restriction on spam alone as you have defined it, is underinclusive -- unwanted forwarded joke traffic, etc. pose the same problems. A ban on spam solves nothing. This is fatal. The ban is also underinclusive because it will have zero effect on stemming the tide of international spam.
While you might defend anti spam laws as being aimed at their collateral effects, the truth is that the motivation for a ban is a dislike for the crass commercial content of the ads. See for example, the Tinker case, where a school sought to ban armbands protesting the Vietnamese War. The school claimed content-neutrality, in seeking to avoid disruption. But truly they only cared about anti-war sentiment, and this was indicated by not banning other potentially disruptive ideological symbols among students.
Commercial speech is not a free speech issue, and niether is spam. There was recently a Nike case about this issue.
Your confidence in the Nike case is misplaced -- it has been granted cert by the S.Ct. and may be overturned. That case is effectively out of play since no one knows what the resolution will be.
Instead consider the current line of commercial speech cases: Virginia Pharmacy (holding that commercial speech is entitled to first amendment protection because of society's interest in learning about commercial information); Linmark (holding that the govt. has no interest in keeping people ignorant, i.e. from learning truthful commercial information); Central Hudson (that the govt. can only regulate where the regulation directly advances a substantial govt. interest, reasonably tailored to achieve that interest).
Among other things, this demands that the government have a reasonable chance of success at achieving their aim, which is utterly lacking in the case of spam. Lorillard Tobacco.
No such notice will ever be binding on the spammer
The only way that a no solicitation notice in real space is binding on someone is that you post it, they violate it, and you bring suit or file charges criminally for the violation.
Likewise, if you think that where you reasonably notified spammers that you don't want spam will be violated, your recourse is IDENTICAL.
No one sues solicitors who respect no solicitation signs, because the situation never arises. Your claim implies that you could never effectively stop spam through legal means (which I agree with), so it's useless to try. Nevertheless, that means that the penalties you mention later would be ineffective as well. Either it works for both or it works for neither. You can't have it in the middle.
The regulation can have the effect of basically making spam go away. If the legimate spam I describe above was required to include an additional mail header to identify it as spam, or some tag in the subject line -- the regulation would be valid -- and the net effect is that spam would disappear.
A law aimed at such an effect is unconstitutional. Even the most restrictive t/p/m regulation HAS to let the speech come through sometime, someplace, somehow.
To make an analogy, you are saying that if someone at your dinner table brought up a disgusting subject that you'd just kill them. I'm saying that I might tell them not to discuss that while people are eating, but that they certainly could discuss it at a more opportune time.
The tagging regulation just will not be legal PRECISELY because it would be effective. It's too effective. Dangerously so.
If the SMTP server offers a NO-SPAM notice, in a standardized fashion, spammers could be legally required to honor it.
That could work. Try that instead.
I'm in fact open to other points of view. That doesn't mean that anyone should have to accept spam.
Spam, first, is content neutral. There have been commercial spams, but there have also been religious and political spams. I hate getting forwarded unsolicited jokes, I'd call them spam-like at the least, and they're expressive speech too. Banning spam bans a great deal of stuff, since spam is not well-defined.
But even if it IS well-defined, the point of view that you need to Make Money Now is still a competing point of view. The Court has been protecting commercial speech very nearly as much as any other ordinary type for decades, because it recognizes that the mere commercial nature of speech doesn't exclude it from the aptly named marketplace of ideas.
[Minimal expense of deleting spam] is irrelevant
I forget which, but one S.Ct. case mentioned that Free Speech meant that people would have to manually take unwanted mail from the mailbox to the trash can, and that it was an unavoidable aspect of our freedoms, and not an unbearable burden for the benefits we receieve.
That's how it's relevant.
Incidentally, note that I hate spam. I hate all advertising, much more than most people. I've filtered my 'net experience so greatly that I hardly get any ads at all.
BUT what I personally do in my private life doesn't, I feel, give me the right to go around telling other people that they cannot say things merely because I don't like it.
The burden on avoiding unwanted content is on the individual; the state is not a valid mechanism for assisting him, saving in preserving his ability to so escape it where not burdensome to free speech.
Who's saying you have to be harrassed. If you don't want spam then you should give spammers a reasonable notice not to give you any. This is akin to posting a 'no soliciting' sign -- it only works if you actually post it, and solicitors could reasonably be expected to see it.
Managing to post such a sign on your email account is, of course, an exercise for the reader.
HOWEVER, this does not stop solicitation generally. It cannot.
It is what's called a time, place, or manner restriction. A law could be passed restricting telemarketing from certain hours, but could NOT ban it or have the effect of banning it altogether.
You could prevent people from soliciting at your house, but not when you're out walking in public.
One of the consequences of a free society is that you are going to have to -- unless you remove yourself from it by living reclusively -- be exposed to competing points of view. This is not necessarily a bad thing; and it's certainly better than any alternative I can think of.
Can spammers make you listen? No. I've never said so. But that does NOT mean that you can make them stop spamming altogether so that you don't have to be troubled to not listen.
As for expense, it's minimal. I would argue that the effort spent in throwing out junk mail is worth more. This is by no means the situation with faxes where paper and toner are being consumed, so don't go pretending that it is.
Similar to shouting fire in a theatre
You do realize that a) the case that made that point is no longer good law (it's been overtaken by Brandenberg), and b) was making a point about speech that very directly and unusually threatened people's lives, as opposed to be being a mere nuisance.
I really loathe the shouting fire thing because it is no longer meaningful. And also because people always leave out the 'falsely' and forget what a firetrap a theather was in the early 20th century.
The PROPER law would be: you cannot say something that 1) is intended as an incitement to unlawful action, if 2) such action is likely, and 3) imminent.
Ultimately this is what the governed want.
That's by far the worst argument you could have possibly made. The governed have also wanted, at various times, only protestantism to be practiced, unpatriotic speech to be banned, competing political parties to be harassed, etc.
The entire POINT of the First Amendment is to remove the ability to limit important freedoms of minorities from the hands of majorities. We could hold a vote in this country right now on whether pornography should be outlawed and there'd be a good chance that people would vote for it to be. (if only because whatever their actual feelings, people would be concerned on how their neighbors perceived them)
The effect of the First Amendment is basically to say 'tough titty.'
This is an absolutely great thing. The fact that you might dislike or even be offended by some of the speech that others thus can freely direct at you is irrelevant with regards to preventing them from speaking.
A less ideal, but equally effective solution would be to simply require spam to be flagged as such, with a criminal penalty attached. The latter idea would still cost me my bandwidth, plus the cost of supporting all of the bandwidth in the infrastructure, but it would have the same effect of completely eliminating spam. (Why? Because everyone would universally filter it, making it unprofitable.)
And that last sentence is precisely why I think that government-mandated spam labeling would be unconstitutional. The government cannot deliberately use private action as a catspaw for acts that would be unconstitutional if it did them itself, as banning spam altogether certainly would be.
Speech CANNOT be banned (barring insanely extreme circumstances almost never seen, and a few exceptions unhelpful to you) based on its CONTENT. This is fundamental. It has apparently escaped you.
Thus spam has to remain unlabeled. It can be regulated as for _fraud_, i.e. in that it cannot be actively misleading or untruthful, but that doesn't require that it actually announce itself as spam either. Only that it not claim to be anything else, not that it need claim anything at all. And this is beyond the level of a mere hard sell, or sales puffery. Libel could also be regulated, but that will be ineffectual against most spam.
Situations where it might need to bear other labels (e.g. FDA nutritional information) are not targeted at it as spam, nor are they intended to chill speech, as you intend. They're a fairly rare exercise of a police power (i.e. promoting public health and safety) and couldn't expand too much anyway. This is about the furthest that state imposition on commercial speech can manage constitutionally, and it's still worth arguing about to make sure that it doesn't become dangerous.
Besides which, your solution is worthless even if it were implemented. Spammers will pick up and move to other parts of the world more freedom-loving than an America that would kick them out would be, send it in, and you'd never stop them through these means without attempting censorship on the scale of China. Would you sue ISPs for blindly carrying that traffic -- or would you prefer the costs and architecture changes and privacy infringements to get them to read your mail before passing it on?
No, no. Private filters are almost certainly fine. I'm saying that the government mandating labels on spam so as to achieve the effect of prohibiting that speech through private means might not be.
If you want to filter spam based upon its content sans mandated labeling, go ahead.
If governmental authority is wholly uninvolved (i.e. not even invoked by private actors), there's no first amendment issue.
Well, I'd argue that content based restrictions on speech are fairly limited. Yes, the US is fairly puritanical with regards to obscenity, but beyond that and fairly minor stuff, e.g. libel, we're pretty good. What you seem to be objecting to is more of what happens on the ground. But that's like saying that we allow criminals free reign because crime _occurs_. You're forgetting about remedial action. I do read the New McCarthyism page, and I don't care for much of what I see -- but if the alleged victims don't pursue a remedy for the wrongs inflicted on them there's little to be done. I'd like it if people acted better, but that's not the end of things.
The fact that a law exists in no way establishes its constitutionality. Jim Crowe acts were on the books all throughout the south (and beyond) for decades, but guess what they turned out to be?
As noted earlier and elsewhere, I'm aware of the issue of spam consuming other resources, and that it might be a possible grounds for avoiding regulation being overturned, but it also might not be enough; free speech is a pretty damn weighty issue.
I'm certainly absolutely unprepared to say that speech should only be allowed if the speaker has to pay to deliver it! That's extremely chilling, and skews speech radically towards the wealthy, who already have plenty of benefits.
The First Amendment DOES allow you to speak at the cost of others, the issue is the weighing of the cost v. the importance of free speech.
You also have to pay to maintain a mailbox and address to receive mail which hasn't had any effect on junk mail.
The hijacking of resouces is a valid issue, but AFAICT it's rare in the U.S. at this point, and while it may negatively effect a small number of people, the effect on spammers and people who want to receive the spam is likely larger if there are more of them. Besides which, a free speech right may be more important; it certainly would seem to be, given the low cost of any particular email even in a metered access plan.
(I know that sounds dumb, but advertising is in part protected because its useful to people to be ABLE to acquire knowledge about what's for sale, etc.)
The thing is that the disclaimers have never been capable of permitting widespread, automated, private ignorance of speech. This is a novel issue. I think that disclaimers that would have such an effect, and which would largely be mandated precisely to enable such an effect, would not pass muster.
Note, also, that there is a difference between selling cigarettes (not a free speech issue) and advertising cigarettes (a free speech issue).
The effect of the law is of importance -- even if it will largely be carried out privately.
Oh, don't get me wrong -- I agree that such a thing _is_ fraudulent, and would be perfectly acceptable to attack some _specific_ piece of spam. But all that does is urge spammers to a) not lie (though they can make a sales pitch), and b) not give you an unsubscription option. That's what I meant by it not reducing the overall volume of spam.
I've noticed that several of those I've gotten have been in the form where that's my username. It was but the work of a moment to filter. Where it's more random, I'm sure that a filter can be put together fairly easily. After all, who has comments everwhere like that, other than spammers. I'd look for, I dunno -- three comment tags that surrounded two single words, without a new line. That would probably work.
Most spam though winds up having a domain name or address in there someplace that's good enough.
Such legislation would indeed be very popular. It would also be unconstitutional, as per the first amendment.
The two types of restrictions that would seem applicable to spam that _would_ be legal would seem to be a) a requirement that they not be fraudulent, which doesn't stop the volume of spam at all, and b) time/place/manner restrictions, which might prevent you from getting spam outside of business hours, but cannot completely outlaw spam.
And, as you note, the enforcement would be extremely difficult, with no effect overseas.
Even something as seemingly trivial as requiring spam to be uniformly labeled as such is probably impermissible, precisely because automated filters would use the effect of this legislation to stop all spam, which would be denying spammers the right to send people advertisements, i.e. banning their speech due to the commercial content thereof.
Frankly, I'm not convinced that a do not call list is enforcible; I'd like to see if it's ever been tested in court. Bans to cell phones might be, due to the way the billing is handled, but only while they aren't ubiquitous. Anyone have any cites?
Annoying as spam is, it's a lot like junk mail. It is delivered to your property, it's your problem to dispose of it, but it's not burdensome to toss it in the trash, or hit delete. Just slightly annoying.
Lord knows, I hate all advertising of any kind -- but I'm not prepared to do stupid crap with significant repercussions just to get rid of it.
What about taking that feed and rebroadcasting it in real time to people. I.e. in the sense of putting up a large tv antenna, and letting an entire block of apartments hook into it via cables in the building? This _is_ rebroadcasting. But we even allow that in the US.
Rebroadcasting isn't as bad as you make it out to be. (especially since the network can simply factor in an estimation of the number of rebroadcasters into their advertising rates!)
That's the main reason that was being argued. OTOH, you've misunderstood the progress clause.
Where the framers wrote 'science' they meant knowledge, generally. The 'useful arts' are practical inventions. The language shift since 1789 has been, in this case, significant. But their meanings are clear if you look to see what those words would've meant when written, and if you look at the structure of the copyright clause -- science/useful arts -- authors/inventors -- writings/discoveries. See how the same word order is maintained?
Anyway, cartoons and songs are cultural works. There's some nuances in it, but roughly this is what copyright seeks to encourage the creation, dissemination, and use of. That they don't comply with your tastes is irrelevant. At various points in time, rock and roll, abstract art, plays, novels, movies, impressionism, etc. have all been considered crap by the stodgy members of society. Later they're embraced as being perfectly valid art forms. In that sense, copyright should be quite expansive. As long as culture benefits, it doesn't really matter _what_ culture. The First Amendment is treated similarly.
Presumably because we like to have directly elected senators.
I do, because otherwise I wind up getting U's that were supposed to be V's.
Yeah... but OTOH recall that the limited term and fair use aspects of copyright encourage the creation of fanfic (you or I can write Oz stories to our heart's content).
And also, some fanfic is actually very good. At times, superior to the original source material. If it was invariably bad, I might agree with you, but there's nothing inherent about fanfic that keeps it from being really excellent.
There's no philosophy involved. Trademarks are there to distinguish one good (or source of goods, etc.) from others.
If you let other people use it pell mell, it no longer is distinguishing anything at all, and you lose your rights to it.
Copyright doesn't work like that at all. The copyright holder absolutely does not have to pursue infringement. The worst outcome (aside from whatever impact the infringment might have) is that the infringer is allowed to do so because you've waived your remedies against him.
That's about it. As I said, no philosophy.
Is it just me or doues this sound like the definition of business for it's own sake? I realize the business of business is to make profit, but that statement make it sound as if the law is a secondary concern, an inconvinience that need be followed only if you're in a good mood.
There are an incalculable number of illegal acts performed daily, both civilly and criminally. That a law is broken does NOT necessitate the exercise of remedies against the lawbreaker.
If you don't care if people infringe on your copyrighted work, you don't have to, and shouldn't have to, sue them for doing so. Just let them. It's the choice of the copyright holder, and forgiveness is absolutely an option.
Well, don't feel bad. I too had originally thought it was a 20th century invention.
I'm sorry, but I seriously doubt that preventing sales of videogames to minors is constitutional if the government legislates to that effect (though people are free to refrain if they prefer). Would you like to get into the analysis?