Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
There has been another interesting copyright decision for those of you following the Los Angeles Times v. Free Republic case. David Carney, the editor of Tech Law Journal, brought it mmy attention. This case does not involve political speech. Nor does it involve news articles. Rather, it involves a bill passed by the last Congress which extends the maximum term of copyrights. The film, music, and publishing industries wanted the extension to keep many of their works from entering into the public domain.
The plaintiffs in that case want to make some of these works available for free on the Internet. They are represented by a distinguished group of professors from Harvard Law School, including Lawrence Lessig. They challenged the constitutionality of the statute. One of their legal arguments is that the new copyright statute violates their First Amendment free speech rights.
Judge Green ruled, in effect, that the First Amendment does not trump copyright laws.
You can read the decision at Tech Law Journal HERE.
Am I reading this wrong, or does this go against us? Is there any plan for John to place the Comments section BEFORE the article section in the Posting area. I saw a post a couple of days ago in which a poster took it upon himself to do a para of comment before he place the article. I really liked it, and it infact made the purpose of the post more coherant.
mmy attention
First of all, quit stuttering. I'm going to read the case, but if the First Amendment doesn't trump copyright laws, we're in a world of hurt.
Of course, we've found that the Second Amendment doesn't trump gun control laws, either.
Assuming this is a copy of the decision the judge actually signed, it is against the legal proposition on which I believe Free Republic should defend its position. On the other hand, from the documents that have been posted on line to date, it does not appear to me that Free Republic has yet contended (as I believe it definitely should) that extension of the copyright protection to preclude posting of individual articles for discussion purposes as this site does, would be unconstitutional.
Rather it has been argued that such posting is "fair use" of the published material and that the site is a non-commercial site. I have doubts about the fair use proposition and once that defense falls, the commercial site argument is not worth much either.
The real foundation of the Free Republic argument here should be constitutional free speech. The fact that a publication such as a newspaper or other media charges money on a reasonable commercial basis (as opposed to serving as a vehicle to avoid the copyright protection of the original author) to serve as a foundation for discussion of the views set forth in the copyrighted material should not be relvant to the constitutional protection of the speech involved--copying the article for discussion purposes simply cannot be constitutionally limited by the copyright laws, even if Free Republic realized income (which it can be argued it does not now) from the operation of the site.
Many of us, myself included, pay money to the plaintiffs for their publication and also read the articles here.
Mr. Robinson has been told sometime very early in the development of this site about "fair use" for "non-commercial purposes" and has apparently not had access to a capable business and constitutional legal advisor to explain how these things relate. Although Robinson's resume indicates that he has had sophisticated experience in the business legal environment, it does not seem to be apparent in connection with the management of the pending litigation.
In the published case, I assume it is or will be appealed. The District Court decision will not be the final answer in any event and the outcome may have a precidential impact on the Free Republic case, assuming that Free Republic attorneys get enough facts on the record to serve as foundation for the constitutional argument on appeal.
Article I of the US Constitution gives Congress the express right to provide limited monopolies in the arts and sciences which is the basis of our patent, copyright and trademark laws. Historically, the arts referred to what we now call the sciences and the sciences referred to writings and the like.
Article I of the US Constitution gives Congress the express right to provide limited monopolies in the arts and sciences which is the basis of our patent, copyright and trademark laws.
Amendment I to the US Constitution "amends" that same Article I limiting its applicability to a man.
It may be seen to apply to corporations, perhaps, insofar as corporations are the creatures of government and subject to the charter under which a corporation is organized. That is the downside of a corporate structure. That corporation becomes subject to whatever limitations government can get away with.
One of the sad commentaries on law today is the deliberate denial of the distinction between the a man and the corporation. The first created by God, the latter created by government. When the courts modified the constitution by defining corporations and individuals as legal "persons" it created a semantic hole in constitutional construction by which many of our God given rights are being abrogated under the rubic of the "equal protection clause", meaning an equal lack of protection for anyone.
As a retired patent attorney, I beg to disagree with you.
There is no way the First Amendment did away with Article I provisions relating to intellectual property. By your reasoning liable and defamation laws would not exist nor would laws relating to treason or espionage since in most cases the intelligence passed on is verbal or written. The protections of the First Amendment are not absolute as big media would have you believe.
If you have to rail against anything, rail against big media and big government because you have little power against these organizations. Big corporations can be made to toe the line by refusing purchase their products and by legal proceedings.
There is no way the First Amendment did away with Article I provisions relating to intellectual property.
Beg to differ in that when such provisions are used to inhibit dissent in the form of comparative commentary on a published "news" article you have a problem, especially when the originator of an article can just make the reference (i.e. webpage) disappear. Statements without persistence are a severe problem as those who issue information cannot be held to an accountablity for their sayings.
Secondly, every individual machine that is exposed to a particular web page, goes away with a copy of it on its hard drive. That is why you are able to read such a page offline. Are you maintaining I as a man cannot give the copy given to me by the originator to another? I assure you that is what is happening.
A strict enforcement of "equal protection" a right supposedly afford to "persons"(i.e. corporations) in such a case would mandate that all news papers and books must be destroyed once the reader who initially aquired it has read it and not show, give or allow another to aquire that same paper.
Why not post the whole article, Clar? Why just a link?
Why not post the whole article, Clar? Why just a link?
Why not post the whole article, Clar? Why just a link?
Why not post the whole article, Clar? Why just a link?
Sorry for the zillion posts. D'oh!
Before you get carried away, copyright protection is based on the presentation and not the content. One cannot not copyright an idea but only its prsentation.
Your reference to the mechanics of hardrives is akin to a child telling his parent everyone does it why can't I. If you have visited a labrary with a copying machine you will be warned by a posted notice about copyright protection.
I happen to believe the judge was wrong in the case involving Free Rpublic, but wild assertions from those untrained in the law do more harm than good. Your assertion about printing out what is on your hardisk only strengthens the plaintiffs' case, ie, visitors to the Free Republic are likely to copy and distribute their intellectual PROPERTY. Whether you like it or not you are dealing with another's property.
Before you get carried away, copyright protection is based on the presentation and not the content. One cannot not copyright an idea but only its presentation.
Granted! However one of the advantages the "fair use" exception in the statutes for copyright is the law provides for the ability to discuss an idea presented in context as opposed to paraphasing and misstating of "factual". material.
Your reference to the mechanics of hardrives is akin to a child telling his parent everyone does it why can't I. If you have visited a labrary with a copying machine you will be warned by a posted notice about copyright protection.
The material the "child" has, happens to have been given to him by the publisher thereof, in fact the medium and presentation itself is a copy machine, indeed it is a program (HTML, VRML or other such programming language) for replication and display on multimedia devises. The child in this case has not copied anything he has been handed, gratis a Von Neumann device, an information virus as it were. The presentation exists in the same form as mandated by the medium and in the same format the publisher chose.
If a publisher has the desire to protect intellectual property which is content expressed on a particular medium, it is encumbent upon a publisher to utilize a medium suitable to that end.
The internet, by its very nature is not suitable to the protection of so-called intellection property, it is a medium for a release of information to a total market. That is why it is named InterNet. The internet is a mechanism that is inherently replicative and cannot work without replication.
Trying to control the use and further dissemination of that content after opening the barn door to one and all with a medium design to disseminate without restriction is foolishness its self. Trying to control information on the network once made available in a public manner is about as useful as trying to put water back into a resevoir after the damn has been washed away.
At some point the property owner has to be responsible to the protection of his own private property. Unenforcible statutes only make all law weaker. The web by virtue of a lack of borders and its replicative mechanism, is not the place for private material and anyone who uses it ignorantly expecting otherwise is a fool, much like trying to use a hammer like it was a screwdriver. The net by intent and structure is built to disseminate information even when under nuclear attack for gosh sakes, to expect to keep unencrypted information under private control is a total misapplication of the technology.
If a publisher wishes to maintain control over electronic distributions the mechanisms of encryption, proprietery software, and the selling of subscriptions are all available to whoever would use electronic dissemination as a printing press. The web is not television, radio, or a paper. The web of necessity and design is a replication machine. If a private enterprise ignores that and chooses not to avail themselves of the protective mechanisms that do exist offering all gratis with a public copy machine as its medium the people can hardly be held responsible to that enterprise's foolishness.
I rather suspect that patent/copyright attorneys had best be advising their clients of the reality of the technology that is being employed here. Trying to rededefine the nature of the technology after the fact is like trying to pass a statute abrogating the law of gravity. Purely a feelgood exercise.
Push hard enough and the public may get upset enough to destroy what few protections currently exist by enacting new statutes to deal with copyright their own way.
Oops! intellection=intellectual. Sometimes anyway :o)
Good question, though.
Let's see if he even attempts to answer it.
The whole article? It's a court decision, jee. It's a public record with no copyright protection of any kind. The link does nothing to address hypothetical liability, everything to encourage hits to a friend's site. *Hope that helps.* Regards.
Oh by the way, yesterday, while waiting to do an appellate argument I was waiting in the Court of appeals' library and happened to come across a new law review article that may contain something of interest to you in your research: See: Note; "Fair Here is Not Fair Everywhere, etc. etc..." 51 Stanford L.R. 1633 (July '99) Tyler G. Newby
The whole article? It's a court decision, jee. It's a public record with no copyright protection of any kind. The link does nothing to address hypothetical liability, everything to encourage hits to a friend's site. *Hope that helps.* Regards.
Thanks for the response! Happy Thanksgiving.
This case does not involve political speech. Nor does it involve news articles. Rather, it involves a bill passed by the last Congress which extends the maximum term of copyrights. The film, music, and publishing industries wanted the extension to keep many of their works from entering into the public domain.
I had the luck of spending some time waiting in the Philly airport this morning for my daughter's flight to leave (delayed due to fog) and so wandered into a bookstore. I found the latest volume from "The History of Communication" -- Rich Media, Poor Democracy Communication Politics in Dubious Times written by Robert W. McChesney, Research Associate Professor, University of Illinois at Urbana-Champaign.
Since I'm a 300 baud reader in a 56K world, I haven't quite gotten to all of the high points yet, but I found the following that, I believe, presents my position:
The core issue for First Amendment theorists, then, is whether the First Amendment protects the rights of press owners absolutely regardless of the implications for democracy much as it protect individual speech regardless of the content of that speech. The alternative is to view the First Amendment protection of a free press as a social right to a diverse and uncensored press. In this view the right to a free press is a right enjoyed by all citizens equally, not just by press owners. Here the explanation for constitutional protection is implicitly linked to the need for a free press in order to have a functioning democracy. Otherwise there is no more need for it's inclusion in the First Amendment than there would be for a guarantee of the right to establish a bread-baking business or a shoe-repair service. As Meiklejohn points out, those commercial rights are explicitly covered in the Constitution by the Fifth Amendment." pp.269 Part II Chap. 6.
Mea Culpa = I have posted news stories, editorials, and political columnists writings here. In each case, I firmly believe that the content was relevant political discourse and worthy of the discussion that occurred here by the citizens of it's political import.
I also agree with ancient_geezer with respect to the blurring; nay the usurpation of Citizen's Rights; that the Legislative and Judicial classes have foisted on us by granting the artificial entity of a Corporation the cloak of Personhood, with all of the attendant rights said Personhood has by virtue of the granting of Constitutional protections.
I came to the realization that the Media was severely biased when, in 1995 I saw a program hosted by Jennings about the White House Media Picnic, and the effusive blatherings that emanated with respect to ABC's WH Correspondent, Sam Donaldson. They were all so proud of the fact that THEY had the right to tell US just how good we had it, all due to the Most Ethical Administration in History!
Thank God for Free Republic.
Thank God for Jim Robinson and his vision and courage.
Thank God for supporters like you, Clarity.
I take from your analysis that you have no regard for other software that comes with your computer or which you purchase. I suggest that you forward your opinions to Microsoft or other software vendors.
Do you believe that because guns are designed to discharge bullets at high velocities that it is your right to use that gun in any manner and even kill people because the gun was so designed?
Your assertion about printing out what is on your hardisk only strengthens the plaintiffs' case, ie, visitors to the Free Republic are likely to copy and distribute their intellectual PROPERTY. Whether you like it or not you are dealing with another's property.
oops. I have two file cabinets with medical articles, and sometimes when I have a problem case in medicine, I xerox them and give them to my collegues.
For the last 2 years, I file them into my computer instead of tearing them out to file.
Third, sometimes I would like to post more on FR but have trouble making a link, so I don't post for fear of causing JR problems, even though I would like input from other freepers.
What I would REALLY like to see is a FR type medical discussion: not the routine articles with their staid discussions in medical webpages, or the semi literate discussion groups with yuppies thinking they can cure everything with the latest fads, but a FR type discussion between MD's to point out the pros and cons of medical articles.
If FR loses, we'll never see such discussions, only staid ones sponsored by those who have an interest in promotion rather than criticism.
I take from your analysis that you have no regard for other software that comes with your computer or which you purchase. I suggest that you forward your opinions to Microsoft or other software vendors.
As my analysis indicates, I have no problem paying them that request that payment for their services or product delivered which becomes my own.
We happen to be speaking of gratis dumping of factual content onto a persons hard drive in the form of a copymachine and subsequent fair use of that copy machine for the purpose of analysis and commentary on the article in question. A substantively different scenario, on the order of dumping unsolicited products into one's mailbox, or perhaps tossing it into ones vehicle as they go by.
Most software venders take the precautions indicated in my analysis when they wish to protect their "intellectual rights". Most such software requires an explicit action on my part to download it to my hard drive it is not a willy-nilly dump there by the owner thereof.
Do you believe that because guns are designed to discharge bullets at high velocities that it is your right to use that gun in any manner and even kill people because the gun was so designed?
As an exercise of my right to self defense in protection of my home, person and property as a God given right. A right which, by the way, is explicitly enumerated in my state's constitution and inherent in the 2nd amendment to the US Constitution, I certainly do.
Pinko Commie Fascist laws NEVER trumps inalienable rights!
What I am conveying is that just because the technology for storing or communicating information is different the laws relating to personal property are and should remain unaffected. To say otherwise would be equivalent saying a title to a house should be treated differently for manufactured homes and conventionally constructed homes once those homes are attached to a property. I don't believe either of you would agree to this latter proposition.
The technology and property rights are two separate and distinct issues. I suspect if either of your were to write a book or play and had it published with royalties based on sales, you would be angry if someome used a scanner to reproduce the book or play and defended their action by saying "hey, that's the purpose of scanners".
As I said I disagree with the judge's ruling regarding Free Republic but not because a technology is involved. Reference to the technology is pure spin or argument by misdirection. The issue is intellectual property rights and only intellectual property rights.
As an exercise of my right to self defense in protection of my home, person and property as a God given right. A right which, by the way, is explicitly enumerated in my state's constitution and inherent in the 2nd amendment to the US Constitution, I certainly do.
What about randomly shooting people with a legally owned gun? A legally owned gun can be used both legally or illegally. I have yet to hear a defendant in a murder case assert the defense innocent because my gun was legally owned.
What about randomly shooting people with a legally owned gun?
Only if they happen to be a mob bent on harming myself; home, person, or property or in defense of nation or state when called upon.
One of God's commandments as expressed in Matthew, "Thou shalt do no murder, ..."
It has also been pointed out "No man may serve two masters." Christ commands us to know the truth to disseminate and spead it. You interfere with that, and your dealing with prime 1st amendment issues.
Yes I do indeed believe political and religous free speech rights of the individual override commercial "intellectual property" interests of copyright law or any law of man that would restrict that. One does not have private "intellectual property rights" to factual information in regards to examination thereof or the examination of the expression thereof. The truth(fact) of statements, of content, and the means of the expression of that content, must be free to be examined and discussed. This is especially true in political and religious contexts.
A state of mind as expressed by one must be open to display and examination and questioning by others. To inhibit that, which unlimited copyright would tend to do, is a total perversion of the meaning of property into a concept fostering censorship and suppression of truth by an indirect claim of ownship of concept limiting how and where a concept may be displayed. A fact once expessed ceases to be private property. The manner in which a information is stated is often as important as the underlying information itself. Indeed the manner and format is a fact in its own right.
I will admit to tossing out somewhat of a red herring on the copymachine argument. However, I do believe that if an enterprise expects to have enforceble right to the revenue that may by due them for material they generate they should take available means to collect and protect that stream of revenue. If they do not, they are defacto offer in such gratis, especially when they handout the copymachine in the form of a Von Neumann device, they are indeed providing a specialized duplicator to those they give it to and cannot claim foul when such device is used by those that recieve it from their own hand.
Paul expessed an attitude about civil law an interesting way nearly two thousand years ago;
"All things are lawful to me, but not everything is expediant."
Yep, the same Paul who had a few things to say about obediance to the powers that be. Paul's statement expresses a necessity as governments are not especially benevolent entities. Governments instituted by men do indeed, on occasion, get it wrong and exceed the authorities God extends to the "powers that be." They have even been known to, on occasion, deny the source(God) of all authority denying their own legitimacy. I will leave it as an execise for the student to determine whether or not such may apply to any governments in this in their own experience.
First you started with Constitutional law and now on to natural law. Intellectual property rights do no not interfere with free speech or use of ideas but merely copying the work product of another who has decided to copyright his work. It astounds me that you so readily recite biblical passages and rely on them while disregarding the rights of others. I always thought that a cardinal principle of the bible was respect for others. I seem to recall one of the Ten Commandments has something to say about stealing. If you are citing the Bible for your authority, the least you could do is respect it.
If I may: ancient_geezer is correct in the implication of the internet/technology on copyright law, but, as Monocle states, it does not affect the essence of the law. Still, one must sympathize with Geezer's point of view, for the internet is inherently open. Unlike, say, the WSJ, which charges admission, the Washington Post freely posts its content on the web for all to see, drawing its revenue from advertisers not subscribers. I can't help but wonder if washingtonpost.com actually turned a profit, would it be far less upset at FR? (by my estimates, they're bleeding; see "Post Third Quarter Results")
Fair use of copyright material must be reasonable, for it cannot be codified. Try this: fair use applies only to websites sympathetic to the administration or editorial board...? I know FR makes fair and reasonable use of copyright material, for there is a distinction between news and commentary on it, and other forms of intellectual property. Why doesn't Katherine Graham post her biography on the web? Geezer already answered that.
What's most offensive about this case is the blatent selectivity of Plaintiff's outrage. I know that's no legal argument, but it reeks nonetheless.
I guess the Post delivers public service only when convenient. Although it reads like fiction, are Post editorials but entertainment and have no bearing on public policy? Have we, all members of the community, no right to rejoinder (have your letters to the editor at 15th Street actually made print?)?
Although not a copyright issue, I sense a similarity between this and the Pentagon Papers case. The NY Times argued that the public had a "right to know." Isn't that what's going on at FR? Any thoughts from you legal scholars?
Intellectual property rights do no not interfere with free speech or use of ideas but merely copying the work product of another who has decided to copyright his work.
One, however, may use a copymachine provided gratis at the hand of the original owner thereof. That has nothing to do with copyright, that is transfer of ownership pure and simple.
Nor may copyright be used to interfere with fair use in political and religious examination. As soon as it does it violates the dissemination and determination of truth and and in doing so violates the rights of all people to know the truth on which political and moral decisions are made.
Fact(truth) cannot be a private property of any person.
The claim of intellectual property rights when improperly applied certainly can interfere with free speech by denying the free dissemination of fact and truth and thereby deny the proper functioning of even the republic itself.
The improper application of copyright law in violation of free speech provisions of the 1st amendment to the constitution is the issue. The biblical admonitions to know truth and disseminate truth to all peoples of the earth make it a religious concern as well.
To claim ownership of truth directly or indirectly through control of "intellectual property" by calling truth an "intellectual property" is an absurdity. If one wishes to own a fiction, one may certainly do so calling it "intellectual property" or anything one wishes, however fact (truth) is another issue all together which is the function of the fair use of factual material provisions in copyright law.
Is it your contention that LAT and the WP are claim to own and sell fictional materials derived from their imaginations (i.e. intellectual property)? Come to think of it that may be a good reason why one should not display it anywhere; Of course then would not be able to point out the fact of the false nature of what they may be expressing and end up violating the first amendment provisions all over again.
If I leave the front door of my house open and someone enters and takes everything value, has a theft occurred?
If I park my car and leave it open and running, someone without my permission drives it away, has a theft occurred?
Although the internet was designed to be open that doesn't mean the internet can be used for illegal activities. Do you think that I can use the internet to make a death threat? Can I use the internet to hack your credit card number and then use it. Can I slander you on the internet without fear of legal consequences. Like all matters in life there are no absolutes even on the internet.
In our most expansive times we like to speak about our open but there are, out of necessity, laws to control our behavior towards others.
If I leave the front door of my house open and someone enters and takes everything value, has a theft occurred?
Truth is not a private property, especially when it has yelled out in a public forum. The internet and webpages are not homes. If you open a store, hand out samples by your own hand and do not charge for the service or someone else pays for it (advertisers), no theft has occured.
The internet is an open forum, to pretend otherwise is foolishness. It is quite easy to control access to a website when one does not wish to be a public forum. The argument is simply invalid.
I suspect this is a good place to direct any lurkers on this thread, I FOUND it quite informative and I suspect you have too...
I believe Jim and others will see this tossed around in courts for many years to come...
Easy there, Monocle, you're getting testy. Your analogies stretch good sense. The argument is whether or not fair use is occurring here. Maybe we need to step back from the theoretical a second. This is what's going on:
The Post publishes an article on its website on, say, a football game. I copy the article, post it on FR, and I and others comment on it. If anything else is going on here, please explain. Nobody shot anybody, nobody stole a car.
So, what's happened? The source of information is the Post - which I have acquired legally. Can I then, re-post that article on an open forum whose intention is to discuss not only the facts of that event (the football game), but the Post's interpretation of it? Is that or is that not fair use?
Maybe the Post lied, the team didn't win, it actually lost. And maybe it lost because the coach was being serviced by a chearleader while discussing offensive strategy, thereby blowing the game for lack of concentration and proper exectution of his duty and contract. Maybe the Post feels that's distasteful, but within the bounds of the law and the position of Head Coach, even if he does commit perjury about it during the subsequent lawsuit by another chearleader who claims she was denied a job opportunity because she wouldn't do the same to that coach?
So, are we discussing the facts of the game, or the Post's opinion of it - which is offered to the public with every intention of impacting the public interest? And is that discussion better served by my telling those with whom I wish to discuss this matter to go read the Post article (which may or may not be easy to do), or by my sharing with them, here and now, a copy of the article so that we can all review and discuss the original article carefully without risk of relying on my interpretation of it?
Just an example.
copyright 1999 nicollo, inc. disclaimer: this material may not be used for anything other than strict and total belief in what i say as the sole and only truth. elections shall conform to my views, legislators shall listen only to me, and presidents shall invite me to imperial dinners. if you agree with me, do as you want with my copyrighted material, but if you so much as criticize or somehow allow anyone to criticize me, you are in violation of my copyright and i will enforce and collect full damages from you.
I just managed to incorporate it into a reply and returned to see your latest. Great minds always seem to run together, hehe:o)
The web is a publisher's worst nightmare when they do not understand the base syllogism of its functioning. To say in some manner that copy is illegal where the web make connection, is totally indefensible in that is what the internet actually does. It behoves the publisher, if he wishes to actually generate a profit from his business, to understand the nature of the medium in which he is dealing. The internet is the copy machine, the copy machine is the very medium utilized in transfer of a communication from one point to many. It very design assures multiple uncontrolled copies and cannot function reliably without them.
The best one can do on an open webpage is to offer what amounts to loss leaders to get the public to come in and actually purchase your wears, over which you have real control. If you try to operate as a publisher in any other manner without that understanding you are destined to a loss and simply going to become extinct; joining Tyranno Saurus Rex as an item of history.
Rex could not adapt that's why it disappeared. WP and the LAT are rapidly headed the same way because of that inability to adapt to a new publishing environment. To expect an artificial construct of law to protect them from loss due to their own stupidity and foolishness is just to much to expect from any society. But then one should not be surpised at that attitude on the part of those particular publishers in this case.
Extinction is the consequence of a social structure not adaptive to environmental change.
To obtain some appreciation for what nature of beast the internet actually is and why trying to treat it as a newspaper or book is destined to just plain failure on could take a look at the following commentary on another article:
It always amazes me how Freepers always seem to be in tune to current discussions. Need an essay on something, wait a few minutes and bango there it is.
And as an after thought (cutting the pumpkin pie) I decided that the seller of newspapers MAY have a problem. IF for example after 24 hours an electronic news source places their "news" article in the archieves and start charging a fee to access...it strikes me THAT all newspapers that are over 24 hours old will have a HIGHER value too. How can the same news, in 2 different mediums have different value?
I know all of you on this thread are lawyers but as an average Joe Blow who sees this "electronic" medium growing in leaps and bounds, WHO do you think will ultimately control these types of issues? I see FBI warnings on video tapes DOES it help? I see how it can curb bootlegging and how it benefits the person who WANTS the profit.
BUT when it comes to a news source, face it newsapapers get handed around offices, do the 10 or 15 people who read it after the initial purchase OWE the paper money?
Thank goodness I haven't had to pay my local library for archieved newspapers. AND also did they break any laws when they put the newspaper on microfiche or is this something that they pay the newspapers RIGHTS for?
I'm serious about the few questions above, I would like to hear any opinions or answers. I'm am extremely curious about this case.
Please forgive my layman's views, for I ain't no lawyer (I guess y'all figured that out already). As best as I can tell from other commentary, "fair use" is a matter of "balance" - whatever that is. I guess that means it's whatever the judge decides.
Ok, forget the judge, at least that one, for she's already made it clear she has no balance: "balance" is the public interest vs. property rights. But, regardless of Monocle's strict views on the subject, copyright is a different animal from physical property. The Founders understood these dual and often conflicting needs, which is why, up until the age of The Corporation, fair use was clearly understood as a matter of the public good. It's funny to me how university "researchers" and public libraries are sacrosanct when it comes to fair use, yet we amateurs at FR get slammed for the same thing.
To me, the WP/LAT suit is over FR's existance, not its use of copyright.
PS: Just curious: any takers on the Pentagon Papers? (my post no. 30)
BUT when it comes to a news source, face it newsapapers get handed around offices, do the 10 or 15 people who read it after the initial purchase OWE the paper money?
Most papers charge for the delivery of the paper not its content or format.
The product of a newspaper is not news, it is the delivery of advertising.
Content is paid for by advertising. In fact content should be looked more upon as the means of attracting readership to whom advertising is delivered. Newspapers carry that which will attract your interest, not to inform you except that the readership's expectation demands at least the pretense of information content in the paper. So passing a newspaper around increases readership and exposure for advertising, whether the advertising be commercial or political/social commentary.
You are not the customer of a newspaper the advertiser is.
Sorry for the delay but the turkey and guests called. As far as the Pentagon papers go, the question was more national security than copyright. A subsidiary question was did the Times obtain the documents legally.
My point on the open nature of internet is people have become absolutists without room for understanding. If you or Ancient could explain to my simple mind without resort to metaphysical reasoning, is there a diffence between an open forum conducted in hall or on the internet. If there is a difference other than the mode in which the forum is conducted, explain the difference. Note in both instances the intent is for the forum to be open.
If you conclude there is little practical difference, then I pose the question why should different legal principles apply? I would also like your thoughts on whether I am free to defame you on the internet but not in any other type of open forum? Would you feel any less defamed or damaged because it occurred on the internet which may spread the defamation far wider?
The Constitution of the United States (c) 1791 -All Rights Reserved.
The Constitution is secure from copyright infringement: it's not been read in years... particularly by the LAT/WP editorial boards.
Question to lawyers out there what about E mail??? hear so much about watching out what you send in a companies computer as the co. may be reading or looking at these mails ---copy right protected?? can you sue your employer for reading them with out your permission?? and possibly taking disciplinary action because of their content?
My interest in the Pentagon papers has to do with the notion of "public right to know" that the judges bought into. Is that not a key ingredient to "fair use"?
You ask: "is there a diffence between an open forum conducted in hall or on the internet." You tell me. Is your example one of copyright violation? What's the case law to which you refer? There's a difference between copying material and public performance of it, is there not? And if so, how does that apply to political opinion?
But here's something you've been avoiding througout this discussion: tell me why is FR posting of materials not fair use thereof?
As regards defamation on the internet, I suppose you should ask Drudge about that... Sidney Blumenthal thinks he did. Say what you like about me, I'm a big boy, I can take it.
You will have to face, somewhere along the line, that the internet is different from other media. I can't speak with the editors of the Post every morning. I can't ring up my congressman at will. I cannot jump into the tv and slap Ted Koppel when he's out of line. I might as well scream from my rooftop. It is the interactive nature of the internet, this forum being case in point. Or is the so lauded internet only useful when profitable?
Yes, there is something different going on here, very different. Free Republic is the old fashioned town hall and square. Free Republic is citizens getting together, exercising the right to assembly and free speech. Free Republic is the soap box and town crier, long ago drowned out by television and radio. Or would you rather equate FR to an AOL chat forum about a movie?
Yes, this technology has changed things. Remember old Mac Mathias trying to snatch cassette players from teenage bootleggers? The Xerox machine changed not just the law, but behavior. Before it, who needed copies of anything? The law had to change because behavior changed. With vcr's, cassette players and copy machines, the transmission and use of copyright material is far different than ever before. Sure, copyright law needed to be expanded and strengthened to cover these new technologies and its essence remained unchanged. But why, then, are there ten copy machines on the floor of the Reading Room at the very bastion of copyright, the Library of Congress? This is like unreasonably low speed limits: the problem is the law, not lawlessness. Do we monitor traffic, perhaps a GPS beacon in every car and a monthly billing for every traffic violation. Or do we accept behavior and adjust law accordingly? I know the answer of the idealists. And I don't like it.
Like Geezer says, the newspapers need to get with it. Please give a little more thought to my notion about the dollar motives behind the LAT/WP lawsuit. They're running scared, trying to squeeze water from a rock... Meanwhile, look what's happening: people are using the internet to do what people naturally do: talk, share, and trade ideas and things. Are we to cry if the horse can't keep up with the internal combustion engine? So, just because nobody can figure out how to make money out of it, must we abandon its great potential? Free Republic is very different. It does not exist without the internet. Just imagine the brutal, overwhelming silence were there no Free Republic.
This lawsuit is a trap and very dangerous. The law needs to adjust to the internet, and the Plaintiff's case is a bad direction. Law that is enforced when convenient is bad law, and this is nothing more than that. I applaud your firm defense of property rights, one of the pillars of the law which ought not be further weakened than already done by the EPA and my local zoning board. Yet, copyright is different - especially its free and fair use at Free Republic; it's about ideas; it's about listening and being heard; it's about the choices we as a nation make.
Give a little thought to your liberties. That's what Jim Robinson did. Does that, too, belong to the Los Angeles Times?
Is a 12(c) motion really appropriate in the case?
Seems like the CTEA is an attempt to redefine the word "limited" to "unlimited for all practical purposes". Seems like if the intellectual property owner could not exact virtually all the commercial value within the earlier alloted time period, they were negligent.
Maybe the WP/LAT v. FR lawsuit could be short-circuited with a "Jim Robinson First Amendment Internet Free Speech Protection Act".
Before you get carried away, copyright protection is based on the presentation and not the content. One cannot not copyright an idea but only its presentation.
Granted! However one of the advantages the "fair use" exception in the statutes for copyright is the law provides for the ability to discuss an idea presented in context as opposed to paraphasing and misstating of "factual". material.
Your reference to the mechanics of hardrives is akin to a child telling his parent everyone does it why can't I. If you have visited a labrary with a copying machine you will be warned by a posted notice about copyright protection.
The material the "child" has, happens to have been given to him by the publisher thereof, in fact the medium and presentation itself is a copy machine, indeed it is a program (HTML, VRML or other such programming language) for replication and display on multimedia devises. The child in this case has not copied anything he has been handed, gratis a Von Neumann device, an information virus as it were. The presentation exists in the same form as mandated by the medium and in the same format the publisher chose.
If a publisher has the desire to protect intellectual property which is content expressed on a particular medium, it is encumbent upon a publisher to utilize a medium suitable to that end.
The internet, by its very nature is not suitable to the protection of so-called intellection property, it is a medium for a release of information to a total market. That is why it is named InterNet. The internet is a mechanism that is inherently replicative and cannot work without replication.
Trying to control the use and further dissemination of that content after opening the barn door to one and all with a medium design to disseminate without restriction is foolishness its self. Trying to control information on the network once made available in a public manner is about as useful as trying to put water back into a resevoir after the damn has been washed away.
At some point the property owner has to be responsible to the protection of his own private property. Unenforcible statutes only make all law weaker. The web by virtue of a lack of borders and its replicative mechanism, is not the place for private material and anyone who uses it ignorantly expecting otherwise is a fool, much like trying to use a hammer like it was a screwdriver. The net by intent and structure is built to disseminate information even when under nuclear attack for gosh sakes, to expect to keep unencrypted information under private control is a total misapplication of the technology.
If a publisher wishes to maintain control over electronic distributions the mechanisms of encryption, proprietery software, and the selling of subscriptions are all available to whoever would use electronic dissemination as a printing press. The web is not television, radio, or a paper. The web of necessity and design is a replication machine. If a private enterprise ignores that and chooses not to avail themselves of the protective mechanisms that do exist offering all gratis with a public copy machine as its medium the people can hardly be held responsible to that enterprise's foolishness.
I rather suspect that patent/copyright attorneys had best be advising their clients of the reality of the technology that is being employed here. Trying to rededefine the nature of the technology after the fact is like trying to pass a statute abrogating the law of gravity. Purely a feelgood exercise.
Push hard enough and the public may get upset enough to destroy what few protections currently exist by enacting new statutes to deal with copyright their own way.
This sounds like a winning argument to me.
Is it your contention that LAT and the WP are claim to own and sell fictional materials derived from their imaginations (i.e. intellectual property)? Come to think of it that may be a good reason why one should not display it anywhere; Of course then would not be able to point out the fact of the false nature of what they may be expressing and end up violating the first amendment provisions all over again.
You're starting to make my head hurt.
In mathematics problems involving more than one variable, one variable is held constant while studying the other variable. The problem of the public's right to know is circumscribed by security considerations, trade secrets, confidentiality agreements and individual's right to privacy as set forth in the Bill of Rights. The issue of copyrights and the internet is only confused by raising the right to know issue.
There is no difference between open forums regardless of how held. Any differences are red herrings thrown out for lack of more persuasive arguments.
If copying or performance of a copyrighted is done for commercial reasons there is no difference in the consequences.
The fact that copyrighted material contains political opinion does invalidate or render ineffective the copyright protection.
Fair use is really the one and only issue involved. The mental contortions argued in this thread are merely attempts assuage feelings of self doubt, often couched in flowery rhetoric. I believe fair use justifies the mode this site employs, but there will always be those who will continually push their rights and privilege to the breaking point and I am not referring to Jim Robinson and the Free Republic.
The reason I was asking, is because in one other decision the judge made, she mention that because the comments came after the actual article posted, the change in purpose of posting did not change until AFTER the comments were made. I understood that to mean if we put the comments section before the article and THEN the replies, we avoided the copyright infringement. I understand she is probably going to be overturned because of this hairsplitting, but I just thought we might as well get rid of her argument up front.
You're starting to make my head hurt.
Whew, still burping turkey out here!
Does point out a real delima, where political expression is concerned copyright must be held subservient to free speech or we lose it all. As free speech is fundamental to the health of the republic, it must be the paramount concern in this issue. Without that we stand to loose those commercial rights as well and publishers like LAT/WP can pack it in as well.
I'm beginning to think that there truly is a "right to know" issue here. Geezer believes that, "where political expression is concerned copyright must be held subservient to free speech," which could only be justified from an overriding public interest. But before we extend "political expression" to either restrictive absolutes or useless universals, we must understand that it's all a matter of balance. What is "fair" but a balance?
Just as you make a distinction between commerical/non commercial use of copyright, there's something different about political discussion. The first amendment cares far more for free political speech than for offensive language or urine-soaked art exhibits.
As for your, "The mental contortions argued in this thread are merely attempts assuage feelings of self doubt, often couched in flowery rhetoric..." What's that about? You bugging there, Monocle? I find no "self doubt" around here, outside of your flipflop on "fair use," that is.
And you won't get any "flowers" from me; I'm a believer, my friend, so try again.
Does point out a real delima, where political expression is concerned copyright must be held subservient to free speech or we lose it all.
The British used a seemingly neutral means for limiting speech in the American colonies. Colonists were forbidden to print, regardless of the content of their papers, without a license. Selective censorship on a case by case basis wasn't practical. Simpler to preferentially license Tories.
I think the bad guys are awakening to the censorship potential of copyright law. There have been some outrageous interpretations of copyright law by courts acting to silence Scientology critics.
"There have been some outrageous interpretations of copyright law by courts acting to silence Scientology critics.
Do tell.
Thanks for the link - quite something. Ironic, isn't it, how what goes around comes around? I'm struck by (bolds are mine):
"Editor's Note: From the pages of The Washington Post, the scripture excerpt has now made its way to the cover of The American Jurist as copied from microfilm found in the collections of The American University's undergraduate library. It is there for the sole purpose of illustrating the subject matter of the case Religious Technology Center v. Leiby (1995 WL 518740 (E.D.Va.)), a lawsuit which is one of the subjects of this article. As Editor-in-Chief of The American Jurist I feel that the Washington College of Law community is entitled to view the subject matter of a case where it in any way may lead to a better understanding of that case. (See Richmond Newspapers, Inc. v. Virginia, 100 S. CT. 2814 (1980)).
The Church of Scientology (under the name Religious Technology Center) has thus included The Washington Post and Marc Fisher as defendants in their suit for violations of trade secrets and copyrights in the United States District Court for the Eastern District of Virginia. (Take a look at Religious Technology Center v. Leiby,1995 WL 518740 (E.D.Va.)). From the pages of The Washington Post, the scripture excerpt has now made its way to the cover of The American Jurist as copied from microfilm found in the collections of The American University's undergraduate library.
***
Judge Leoni Brinkema ruled against the church. Judge Brinkema put forth that (as per Richmond Newspapers, Inc. v. Virginia, 100 S.Ct. 2814 (1980)), "as print and electronic media are the public's chief source of information about trials and that media coverage of legal proceedings contributes to public understanding of the rule of law . . . [t]he public interest lies with the unfettered ability of the Post to report on the news."
One might suspect the WP took that literally as an endorsement to be a public monopoly for commentary on the news. aka WP/LAT suit against Free Republic.
The purpose of the suit is to harass and discourage rather than to win. The law can be used to easily harass, and enough harassment on somebody who is simply on the thin edge anyway . . . will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly.
-L. Ron Hubbard, Church of Scientology DirectiveBeware of attorneys who tell you not to sue . . . the
purpose of the suit is to harass and discourage rather than
to win.
-L. Ron Hubbard
WP picked up same bad attitudes from L. Ron Hubbard, perhaps?
Are there any outstanding unpaid judgments against you, counsel?
Has the IRS ever filed any liens against you?
Where did you get your PhD in ConLaw, and why doesn't it appear in any of your published bios?
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
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