[bill_mchale]

Originally Posted by Kali Yuga

Correct, but to suggest that current copyright law is unconstitutional is, as far as I can tell, patently absurd and has no basis in actual case law or fact. E.g. Eldred vs Ashcroft (2003) established that the extension of a copyright term to Life + 70 was acceptable.

And again, most nations have Life + 50 or longer as their copyright terms. The US Constitution does not apply to them at all.

I agree that in this context we are only talking about US copyright... but I think it is rather relevant here since the USA produces a rather large percentage of media in the world.

Mind you, Eldred v. Ashcroft does currently establish the Constitutionality of the law, but you should remember that in the past the Court held Segregation was Constitutional only to overturn itself after nearly a century of segregation.

I'm sorry to say that this is an absurd position.

The new-found ability to copy an artwork quickly and easily does not necessarily create a "new freedom," especially when the relevant actions are a violation of existing laws. If you did not have the right to duplicate a work of art prior to the invention of magnetic tape recorders, nothing about that invention suddenly grants you that right.

Actually, the Court said you do in fact have a right to duplicate a work of art provided you own a legal copy and the purpose of the copy is format or time shifting or to make an archival copy.

Remember the US Constitution is based on the concept that human are absolutely free and that our rights should be constrained only when necessary to protect other more important rights. In practice our freedom is also constrained by what we are able to do; in practice we were free to fly before 1903, but we couldn't exercise this freedom. No one would have complained about laws against flying before they were able to fly.

For example, let's say I invent a trivially easy way to make a human clone. This invention does not suddenly generate a new right to make human clones; the assignment of that right will ultimately be determined by a legislative process. Or, let's say I invent a new weapon that rapidly kills dozens of human targets with the greatest of ease, is highly portable, and is easy to manufacture. This "technical advancement" does not create a "new freedom" to murder at will which is only barely restricted by a thin veneer of law.

Neither the congress nor any body can legislate a new right; it might constrain the exercise of a right to protect other rights or it might codify a right but that codification does not mean that right did not exist prior to its codification. Copyright is actually a misnomer in the sense that it is not really a right, its a license by the state to artists to profit from their creations.

Lets look at your analogies. In fact, I think you will find that if someone does develop a way to make clones, that they do have a right to make such clones until such time as Congress was to constrain such action.

As for the weapon analogy, its a rather flawed position. In practice the right of a human to live is the most basic right and the most basic constraint in any society is to limit the ability of people in that society to kill other members of that society.

To put it mildly, "Law X is hard to enforce" is a poor, if not completely invalid, justification to overturn or abandon a law. Either a certain behavior is just or unjust; or, it advances or hinders the public interest.

Its not just a question of a law being hard to enforce, its also that the law is routinely ignored that is the point. If we all were committing murder, murder statutes would be hard to enforce as well. The point here is that people can often effectively vote with their actions.

What is worse, by establishing laws that are routinely ignored, the State effectively undermines its own authority. As people get into the habit of disregarding one law, it makes it easier for them to disregard other, more important laws.

True, but these exact same words and observation(s) can be used to justify a draconian attitude towards copyright enforcement.

And how long do you suppose the Public will put up with Draconian enforcement when they all wish to do the activity involved? Draconian enforcement of drug laws is only tolerated because most of us do not use them. However, when the state tried Prohibition, it ended up being repealed within 15 years after being widely flaunted.

By the way, Shaggy, it's Stallman (and bill_mchale, apparently) who are suggesting that the new technical ability to share digital content justifies widespread copyright infringement. You may want to exercise care when choosing your allies....

I am not suggesting that violating copyright law is currently justified. However, if the Congress continues to listen only to the unbounded interests of media companies, it might ultimately be responsible for a major backlash against the media companies.

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Bill