Our little authress hit only one aspect of the lower court decision -- it's pleasant to see it, though. The distinction between a commercial and a non-profit entity is apparent only to a leftist who sees all things by the amount of tax paid. The fewer taxes paid the more noble the entity, which makes a non-profit glorious (no mention of a Federal subsidy therein).
JimRob made the mistake to dare act like a non-profit without the label. The only difference is that he didn't ask the government for his money up front. Our Judgess, of course, couldn't see the shadow for the glare of her own shine. It was stupid and not even the 9th Circuit will give satisfaction to that aspect of the decision.
The ultimate perversion of the tax code comes of this insipid distinction of a 1st amendment right based upon one's financial motives.
The fundamental issue here is the nature of political speech.
What shall the courts do with a gathering of citizens who wish to discuss the nature and future of their nation? It is inherently political, and inherently American, profitable or not (ask Limbaugh).
If I were counsel for FR I'd read to the court the entirety of de Tocqueville's "Democracy in America." Just a little reminder that would cost the LAT/WP some 100 hours at $450 an hour that the strength, purpose, and success of America comes of an active, informed, and deeply involved citizenry. This is a far greater imperative than a severely narrow copyright issue -- above all FR's purpose is an informed, active and involved citizenry.
Let LAT/WP argue their profitability over Democracy in America. Suck my dollar wads, Ghosts of Kate.
When the District Court ruling came down I hardly took notice of the idiotic notion that by name alone FR was a commercial entity. I wasted not even anger, discarding it, instead, as another courtroom ridiculosity. Now we have this article. The writer, in what I can only call a shrewd naïveté, sets the commercial aspect of the decision in play. I bother myself with it for the first time. I must say, I missed it completely.
Forgetting all the other arguments and rulings, the irony on this one is too good. Plaintiff seeks damages in order to protect a commercial interest; the Court rules that since defendant is a commercial entity, damages apply. Am I seeing this straight, especially the converse logic?
What then, are the damages if plaintiff is not engaging in commerce? Let me ask that the other way around: Is there copyright without money?
We recognize the public benefit of copyright in that it rewards investment and promotes competition, which is why it is construed as property. We also know that copyright is extended by Congress every time the Mickey Mouse franchise comes due. Congress has turned copyright into a commercial property.
This perversion of a constitutional intent was completed when Congress created a special exception for copyright use not motivated by financial gain, the so-called Fair Use. It's like giving your little brother an M&M and keeping the rest of the bag to yourself. Fair Use is a souvenir to 1789. It looks nice, but it ain't the real thing. Fair Use is the remnant, thin slice of Article 8, Section 1's stated intent To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. It's all about money now.
We need here to insert a core Nicollo definition: All Economics are Politics.
By the District Court's conception Fair Use is defined solely by the distinction between dispersement or reinvestment of profits as accorded by the Government's idea of a useful endeavor. So long as the tax papers have been properly filed. That's right, you dot.commers. Got no .org and you're all about the money, just like the Washington (com)Post.com, and, of course, nothing like the Pew Foundation, or any of the other Congressionally-sanctioned private fortunes that make money in order to influence the way you lead your life. They'd get the Fair Use exception, cuz, you see, they're "not for profit."
Sorely missing in modern copyright definitions is how the right benefits society, that is, how it promote[s] the Progress of Science and useful Arts.
A newspaper has an investment to protect and to recoup in its news reports, certainly. Once launched, however, that news becomes far more than an intellectual property. Only its formulation, or how the words are put together, are protected in exclusive use. I am not arguing that a news story is not protected. What is not protected is its usefulness. The distinction is crucial.
Here we arrive at "transformation," one of the loveliest of the lovelies of "Fair Use." News don't exist if nobody's listenin' (what good an "exclusive Right" without an audience?). The (com)Post is free to publish and sell all it wants and can. But what defines its usefulness? News belongs to nobody. News is raw data. News has no value without interpretation. The first act is to write it. The next is to read it. We here at FreeRepublic go one further. We make it useful.
The (com)Post cannot have it both ways. It cannot pretend to have protection for its words and its ideas. Members of FreeRepublic do not choose to participate in the (com)Post's interpretations of news. We are forced into it because we are citizens. Our reply is to join together to understand what is fed us. The only difference is that we care to notice. And yes, we bite back.
Put that on the judicial scale: does the limited* posting of full-text articles benefit society and fulfill the constitutional intent more than the number of hits at (com)Post.com?
[* key, key, key: we don't re-publish an entire newspaper, and our intent and use thereof is clearly defined]Listen carefully Ghosts of Kate: nobody ever said we stole your news stories, not even you. Nobody here put a quarter in the machine and walked off with twenty copies to resell at the traffic light down the street. What we are guilty of is making your rag useful. Set it to a price, and you can re-make a nation. Over our dead html.
One more thing: not copyright-able, and imminently important to a news story's usefulness is reader comprehension of the origin of the news and its attitude as presented. The Court may require the reminder that the Washington (com)Post is not the objective, all-knowing news source it pretends to be.
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JimRob, I'm just out for exercise. Hope it's helpful.