Cory Doctorow on DRM on the BBC website

[Kali Yuga]

Originally Posted by rogue_librarian

They're both tenured professors at Duke and constitutional scholars. It's safe to assume they know what they're talking about. It's an interesting read, actually, if you like that sort of thing.

Considering that their basic premise (as related by Giggleton, at least) runs counter to multiple rulings, and more or less ignores the fact that the Bill of Rights was essentially contemporaneous to the ratification of the original body of the Constitution, I don't buy it.

At a bare minimum -- and as Ginsburg noted in Eldred v Ashcroft -- copyright protects a fairly specific arrangement of content, not the idea that is expressed. E.g. Malcolm Gladwell has a copyright on The Tipping Point, but cannot stop anyone else from using and extending the basic concept of a statistical or cultural "tipping point." You might be blocked by a civil action -- not government edict, mind you -- if you try to sell a "Star Trek" story without permission; however, anyone can (and, it seems, does ) write a story about people traveling through space faster than the speed of light, with aliens and talking computers.

You'd also have the question of a conflict between "freedom of expression" and "state secrets." Is the First Amendment protection so extensive that the government has no authority to classify any document it produces? If someone tells me "Valerie Plame is a spy for the CIA," is that a form of "free expression" that is protected by the First Amendment?

What about libel? Does the First Amendment also entitle me to libel someone, shout "fire" in a crowded theater with the intent of causing panic, threaten a fellow citizen with imminent death, or produce child pornography?

And, consider the language when the Constitution does explicitly overrule an earlier section: "The eighteenth article of amendment to the Constitution of the United States is hereby repealed." (Seems rather overt to me, but what do I know, I'm not a Con Law scholar. ) Clearly, the First Amendment made no such explicit instructions to eliminate the copyright clause; thus interpreting its intention or effect to do so is, well, a bit of a stretch.

Let's face it, the First Amendment should be granted a great deal of latitude and power, but it is not absolute.

[jgaiser]

And as much as I hate agreeing with Kali Yuga (not really), I also think that the authors are blowing smoke. Tenured or not.

[Kali Yuga]

As to the Doctorow article:

If he wants to give away his material in an attempt to get revenues elsewhere, or via his followers making extraneous purchases, that's his choice. The great thing about contemporary copyright is that it lets you do that, if you so choose.

As to DRM, I have to say that some of his arguments don't quite fly, which naturally won't stop him repeating them indefinitely.

• Let's face it, authors in particular have limited venues to earn other sources of revenue once payment for the words goes out the window.

• Many collaborative art forms, especially costly ones like movies -- even small ones -- will have tremendous funding challenges if they can't collect revenues from viewings. Is anyone really going to buy a commemorative mug for Tarkovsky's [u]Nostalghia[u]?

• Does it make sense to walk away from revenue, because some people are just going to pirate it anyway?

• The idea that DRM in any way, shape or form facilitates government surveillance is, how should I say, slightly amusing. E.g. your location can already be tracked via GPS, which is essentially an open and unprotected system. Same with IP's, cell phone tower locators, subway cards (the NYPD routinely scans Metrocards to see where someone has been), toll collections, etc etc -- none of which use DRM.

• There are lots of artists who release work without DRM who still languish in obscurity.

• It's unclear how well Radiohead did with its "pay what you want" model with In Rainbows. However, they didn't repeat the experiment with their latest release, so....

However, I do have to commend him on having a sense of humor about XKCD busting his chops.

[Andrew H.]

Originally Posted by jgaiser

And as much as I hate agreeing with Kali Yuga (not really), I also think that the authors are blowing smoke. Tenured or not.

+1

I haven't read the book, but to the extent that the authors are claiming that the 1st amendment trumps copyright as a matter of law, they are simply wrong. There are *no* cases that support this view, and all cases addressing this topic come out in the opposite direction.

Of course, they may simply be presenting and argument for how things should be. In which case they should stop writing books and write forum posts instead.

[Giggleton]

Originally Posted by Kali Yuga

Let's face it, the First Amendment should be granted a great deal of latitude and power, but it is not absolute.

Then why is the copyright clause?

[Giggleton]

Originally Posted by Andrew H.

Of course, they may simply be presenting and argument for how things should be. In which case they should stop writing books and write forum posts instead.

Judge not lest ye be judged. What do the courts do except present an argument for the way things should be?

Here is a an excerpt from the final chapter of No Law, to be honest it does sound a bit like a forum post.


The way things should be

[etienne66]

Originally Posted by rogue_librarian

It's still "limited", of course.

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.

I disagree. In regards to the lifetime of the author it is unlimited. If someone writes something and publishes it when they are 20 years old and they live to be 110 then the copyright lasts for 160 years. With regards to the author he has no limits within his lifetime. I'm not saying copyright should expire when someone dies, but why isn't copyright the same time-frame as a patent? It used to be 14 years with a 14 year renewal. To me this seemed very reasonable. Here's the history below

• Copyright Act of 1790 - established U.S. copyright with term of 14 years with 14-year renewal
• Copyright Act of 1831 - extended the term to 28 years with 14-year renewal
• Copyright Act of 1909 - extended term to 28 years with 28-year renewal
• Copyright Act of 1976 - extended term to either 75 years or life of author plus 50 years; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
• Copyright Renewal Act of 1992 - removed the requirement for renewal
• Uruguay Round Agreements Act (URAA) of 1994 - restored U.S. copyright for certain foreign works
• Copyright Term Extension Act of 1998 - extended terms to 95/120 years or life plus 70 years

Etienne66

[rogue_librarian]

Originally Posted by Kali Yuga

Considering that their basic premise (as related by Giggleton, at least) runs counter to multiple rulings ...

Nothing in law is ever really fixed. Courts frequently change their opinion; the US Supreme Court certainly does (about a 150 times since WW II, in case you were wondering) and particularly in cases "involving the Federal Constitution, where correction through legislative action is practically impossible" (Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410. Brandeis, J., dissenting).

As they so aptly put it: "When convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. (Smith v. Allwright, 321 U.S. 649, 665)

It's usually legal scholars' work that discusses and criticizes courts' decisions that bring about such change. In that light this book raises a few very interesting questions and makes good points; nothing more, nothing less.

Originally Posted by Andrew H.

I haven't read the book, but to the extent that the authors are claiming that the 1st amendment trumps copyright as a matter of law, they are simply wrong.

They are merely voicing an opinion. There is no "wrong" as long as you're internally consistent in your arguments.

[rogue_librarian]

Originally Posted by etienne66

In regards to the lifetime of the author it is unlimited.

Sorry, but it's still about securing rights for limited times. Are they unreasonably long? Certainly could be argued. Should they be shorter? In my opinion, yes. Are they unlimited? No, they expire 70 years after the author's death.

... then the copyright lasts for 160 years.

Yes, it's quite long. No, it's not unlimited.

[etienne66]

Originally Posted by rogue_librarian

Yes, it's quite long. No, it's not unlimited.

I guess we will have to agree to disagree. From my point of view they haven't given limited rights to the author but given limited rights to the author and their heirs. Assuming the author does not die young it is likely that the author's great-great-grandchildren will be the last rights holders before they expire. In my opinion this is no longer promoting "the Progress of Science and useful Arts" as was originally intended, but to secure a legal monopoly that is not allowed in regards to patents.

Etienne66

[Joykins]

I think it's reasonable to have the copyright period be that necessary to sustain the copyright holder and his/her immediate family (widow, children). death + 50 years seems reasonable, extending it to 75 not so much.

[Kali Yuga]

Originally Posted by Giggleton

Then why is the copyright clause?

It isn't.

The copyright clause has its own limitations, and in some instances the US Government has in fact structured things to deal with these types of conflicts.

For example: All documents created by the US Government are in the public domain, including those classified as top secret. As a result, the government cannot sue Wikileaks for copyright infringement. I.e. they can't use copyright to silence criticism.

[elcreative]

You can disagree all you like but you can't change the meaning of the English language and put very simply, "Quite long" does NOT equal "Unlimited," these have distinctly different meanings...

Originally Posted by etienne66

I guess we will have to agree to disagree. From my point of view they haven't given limited rights to the author but given limited rights to the author and their heirs. Assuming the author does not die young it is likely that the author's great-great-grandchildren will be the last rights holders before they expire. In my opinion this is no longer promoting "the Progress of Science and useful Arts" as was originally intended, but to secure a legal monopoly that is not allowed in regards to patents.

Etienne66

[tompe]

Originally Posted by Joykins

I think it's reasonable to have the copyright period be that necessary to sustain the copyright holder and his/her immediate family (widow, children). death + 50 years seems reasonable, extending it to 75 not so much.

Why? You do not use that principle for ordinary salary work. So why use a different principle here?

[Kali Yuga]

Originally Posted by rogue_librarian

Nothing in law is ever really fixed. Courts frequently change their opinion....

Quite true, but that doesn't mean the court can or will arbitrarily change its mind. They're usually rather circumspect about overturning existing precedents, and I don't see what "social changes" are present that would validate such a radical interpretation of the text, especially given how recent several rulings are that go in the opposite direction.

(You may also want to keep in mind that while I for one agree that the Constitution ought to have latitude for interpretation, a major school of thought suggests this is not the case, and that the justices ought to adhere as closely as possible to the original intent of the ratifiers.)

Consider the current limitations on the First Amendment; its protections do not extend to:

• Libel and/or slander
• Imminent death threats
• Directly inciting acts of violence
• Criminal conspiracy
• Hate speech in conjunction with a violent crime
• Speech used to perpetrate fraud or a criminal conspiracy
• False advertising
• Exposing state secrets

All of these restrictions on speech were instituted via laws and most (if not all) upheld by court rulings; none had the additional protection of an explicit and specific clause in the Constitution.

If you're going to claim that First Amendment rights are so absolute that it can override another clause in the Constitution -- without bothering to explicitly reference the allegedly overturned clause -- then how could any of the other limitations possibly stand? After all, the Constitution doesn't explicitly set up the "do not harm" standard for the First Amendment; that's just a legal interpretation.... which, as you so helpfully point out, can be discarded at any time, yes?

Originally Posted by rogue_librarian

They are merely voicing an opinion. There is no "wrong" as long as you're internally consistent in your arguments.

Things may change, but there is still a certain amount of fact involve in interpretations of the Constitution.

For example, if you claim that human slavery is constitutional in 2010, despite the existence of the 13th Amendment, then that is just plain wrong.

As such, I really do not have many qualms about stating that their interpretation of the First Amendment doesn't match existing case law, it doesn't match the direction the court has moved towards lately, that the First Amendment was quite clearly not intended to eliminate the Copyright Clause, and that if you want to get rid of copyright altogether you're going to need to amend the Constitution and eliminate all copyright laws.

I.e., at least on a preliminary basis, I'm gonna go out on a limb and say "they're wrong."