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| DATE | 2002-04-06 |
| FROM | Ruben I Safir
|
| SUBJECT | Subject: [hangout] Re: [fairuse] The Constituional Basis of Fair Use (response to Slashdot)
|
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Date: Sat, 6 Apr 2002 20:27:10 -0500
From: Ruben I Safir
To: fairuse-at-mrbrklyn.com
Cc: fairuse-at-mrbrklyn.com, hangout-at-nylxs.com, rms-at-gnu.org, lizarum-at-yahoo.com
Subject: [hangout] Re: [fairuse] The Constituional Basis of Fair Use (response to Slashdot)
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Easier to read...
On 2002.04.06 19:08 Ruben I Safir wrote:
>
> http://yro.slashdot.org/comments.pl?sid=30357&threshold=0&commentsort=0&tid=123&mode=thread&cid=3297002
>
> Go comment on Slashdot - build a long thread...spread the cheer...
>
> ________________
> Rebuttal of Editorial on www.overclockers.com by New Yorkers for Fair
Use:
>
> by Ruben Safir
> Founder of NY Fairuse and President of NYLXS
> http://www.nyfairuse.org
> http://www.nylxs.com
>
> The recent article on Overclockers, also featured on Slashdot, on
Saturday April 6th, 2002, is a well thought out representation of the
case that copying is not a constitutional right. While the case is
presented nicely, and with sound logic, it has a number of fatal flaws
within it which causes the author to draw the wrong conclusion. Since
this article is gaining decent notoriety, we at New Yorkers Fair Use
(http://wwwnyfairuse.org) felt it necessary to fix the mistakes within
this article and to present the correct opposing legal and human rights
premise for the correct analysis of not only copyright law, but also
basic civil rights at this of the dawning digital age.
>
> Recently, the Free Software group, NYLXS (http://www.nylxs.com) and
New Yorkers for Fair Use joined together and made a special lobbying
trip to Washington DC for the purposes of educating the New York City
Congressional delegation, and specifically, Congressman Anthony Weiner,
who sits on the Intellectual Property sub-committee in the House
Judicial committee, about the increasing dangers to Fair Use and private
property being presented by Congress in the interest of the music,
publishing and movie industry. The issues outlined in both the
Overclockrs article and by Laws like the DMCA, or the proposed SCSS bill
coming out of Senator Hollings Chair in the U.S. Senate are the same
ones that the NYLXS group tried to present to the Congressman. And
these points are remunerated here for the benefit of the wider
community so that they are better informed about your individual rights
under the Constitution and statutory law with regards to your property
and security in your home.
>
> In the article at Overclockers it was stated:
>
> Fair use is never mentioned in the Constitution (not even mentioned in
any copyright law until 1976). Rather, it originated in the courts
during the nineteenth century as a means by which producers of
intellectual property could make limited use of the work of others (and
allow somewhat freer use for nonprofit educational purposes).
>
> While the initial observation is correct, the conclusion about Fair
Use not being based within the constitution is just not correct. Many
individual activities which we engage in daily are not explicitly
mentioned within the body of the US Constitution and yet have full
protection under the Constitution since they are implied by the specific
articles within that sacred document. The Constitution does not
specifically say that you can sleep in your bed, but of course you can.
It doesn't explicitly give you the right to change your tire, but of
course this activity is guaranteed to you. Specifically, the Fourth
Amendment of the Constitution deals with the issues of property rights
and general personal security. It says:
>
> The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
>
> Like many of the Bill of Rights and the other amendments and clauses
of the U.S. Constitution, this paragraph gives broad rights as
individuals in an attempt to guarantee individual freedom. They
guarantee your ability to participate fully in the larger society
without fear of reprisal and repression. It would not have been
reasonable for the founding fathers to have tried to enumerate every
individual activity, both at that time, in the late 18th Century, and
for the the future. This is especially true since a broad general legal
and human rights principle was fully capable of being presented, and
indeed needed to be clearly stated within the definition of a limited
representative government. Such was the mission the U.S. Constitutional
Committee and what it was mandated to draft at that time.
>
> Since the early adoption of the Constitution, it has always been the
job of the U.S. Courts, and the Supreme Court specifically, to handle
individual applications of events to the law. Simply put, this is what
courts do. The application of Constitutional Law to the case of
personal copying is just one more application. Indeed, I can find no
other conclusion but that individual personal copying can be anything
but Constitutionally protected.
>
> In order to understand this, let's look at the history of Fair Use as
a Doctrine. The article on Overclockers said that the history of
Copyright begins 19th Century. This is just wrong, and contributes to
the authors misunderstanding. Fair Use is a doctrine which begins prior
to the adoption of the U.S. Constitution. The time line published at
http://arl.cni.org/info/frn/copy/timeline.html can be helpful in
understanding the issues of both copyright and fair use in our legal
environment. Fair Use was first introduced as a doctrine simultaneously
with the introduction of the first copyright laws in England with the
Statute of Anne by British Parliament in the year 1710. When that quaint
statute defined limits to booksellers and publishers with regard to
price gauging, of all things, and demanded that public copies of all
protected works remain with several important libraries and universities
it began to define Fair Use. In addition, the Statute of Anne expanded
the publics investment of intellectual assets, in defiance of common law
at that time, by the formation of the "Public Domain" after 28 years of
protection for any work, and assuring the import of foreign works in
Greek or Latin would not be prevented by the statute.
>
> The Statute of Anne was aimed for the technological problems of it's
day, when the cost of printing was very expensive and Booksellers and
Printers were often one of the same In addition, the statute from the
very beginning was tied to the economic impact of copying, and it
clearly subjected the individual to limitations on the sale of
registered works, as opposed to a broader prevention of routine copying,
or quoting.
>
> In American Copyright Law, much debate was given to the need to create
exclusive monopolies for works and inventions, and it was assumed that
without an explicit exception for such a monopoly, that Congress would
not have the power in infringe on either Free Speech or Individual
Property Rights. After much debate, the monopoly clause was added into
the U.S. Constitution, and then the Bill of Rights was added. Since
that time, lots of debate has taken place in the courts as to the nature
and the legal premise for The Fair Use Doctrine. Up until recently,
courts have come to view Fair Use as a doctrine based on Copyright Law.
There has been a body of law which holds that Fair Use emulates from the
1st and 4th amendment, but practical cases have not made it essential to
fair use doctrine. Instead, fair use has been viewed by the courts
mostly as part of general copyright law. Upon copying something, if you
get sued, then you can respond to the law suit with a charge of fair
use. However, just as the Statute of Anne was aimed to address the
technological issues of it's day, and was inadequate to address the
growing technological changes as technology evolved, the same is true
about a large segment of the current copyright case law. Yesterday the
courts had the luxury of ignoring the practical questions of the
individual property rights and the limitations of those rights by
copyright claims, because practically speaking, they didn't exist. Even
the copy machine didn't make it practicle for wholesale printing of
books, and neither did the VCR make it practical for wholesale copying
of videos. Today things are different.
>
> The original assumptions for monopoly control of human intellectual
works and the inherent infringement to the security of private property
in the home need to be revisited because digitalization of
communications has made it possible to intrude on the home and
businesses at every turn. Almost as soon as the phone became prevalent,
Congress was called upon to pass wiretapping laws. In this case, the
communications taking place actually traveled through a privately owned
infrastructure, and so wiretapping by the phone company had to be
addressed legislatively. But the government could never spy on you
without a warrant. In the case of the individual purchase and
acquisition of a disk and a communication device such as a general
purpose PC, the ownership of these items is clearly the individual and
has full protection under the 4th amendment.
>
> A large body of both state and federal law deals with the very nature
of a sale. Money is exchanged for goods. It's fundamentally simple and
there are limits to that which any contact can be forced upon the buyer
under common conditions without the expressed existence of a written
contract which restricts the private enjoyment of the use of that
property. As my property I can paint my walls pink, I can read to my
children, I can cook my dinner and I have a right to copy my property to
my property. If your not finding the constitutional right to copy,
there it is in plain view. If I want to play my DVD on my blender,
nobody, not the RIAA, not the MPAA, not even Pat Schoeder, has the right
to stop me, or to prevent me from making copies of it on tape or making
any other copies.
>
> Lastly, it's important to understand that technology has raised the
issue of the Constitutional components of the Fair Use Doctrine.
Clearly, we must now see that unless we are willing to be spied on, and
infringed upon in a most basic way, and to dispense with our rights
under the 4th Amendment, then we need to return to the Constitutional
assumption that Fair Use is the embodiment of basic human rights,
including the 1st and 4th Amendments, upon which the basic principles of
a free society and free government can not dispense with in order to
assure it's survival. Copyright is a limited government monopoly
granted to entities. They are nothing more than a limited exception to
the Bill of Rights permitted to Congress for the public good. They can
not be allowed to be extended beyond their traditional restriction of
the granting a monopoly of commerce in certain intellectual works and
artifacts.
>
>
> --
> __________________________
>
> Brooklyn Linux Solutions
> __________________________
> http://www.mrbrklyn.com - Consulting
> http://www.brooklynonline.com - For the love of Brooklyn
> http://www.nylxs.com - Leadership Development in Free Software
> http://www.nyfairuse.org - The foundation of Democracy
> http://www2.mrbrklyn.com/resources - Unpublished Archive or stories
and articles from around the net
> http://www2.mrbrklyn.com/mp3/dr.mp3 - Imagine my surprise when I saw
you...
> http://www2.mrbrklyn.com/downtown.html - See the New Downtown
Brooklyn....
>
> 1-718-382-5752
>
>
>
> To stop the messages from coming see
http://www2.mrbrklyn.com/appl/fairuse/gone.html
> ____________________________
> New Yorkers for Fair Use -
> because it's either fair use or useless....
>
--
__________________________
Brooklyn Linux Solutions
__________________________
http://www.mrbrklyn.com - Consulting
http://www.brooklynonline.com - For the love of Brooklyn
http://www.nylxs.com - Leadership Development in Free Software
http://www.nyfairuse.org - The foundation of Democracy
http://www2.mrbrklyn.com/resources - Unpublished Archive or stories and
articles from around the net
http://www2.mrbrklyn.com/mp3/dr.mp3 - Imagine my surprise when I saw
you...
http://www2.mrbrklyn.com/downtown.html - See the New Downtown
Brooklyn....
1-718-382-5752
____________________________
New Yorker Linux Users Scene
Fair Use -
because it's either fair use or useless....
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