[PLUG-TALK] Fair Use, etc.

Jeme A Brelin jeme at brelin.net
Wed Mar 20 22:52:48 UTC 2002


On Wed, 20 Mar 2002, Dylan Reinhardt wrote:
> I made the claim (documented it, even) that Napster's argument before
> the 9th Circut was based on Sony v. Universal and didn't appear to
> feature the "all copying is OK" argument you claimed it did.  Your
> answer was that this was *just* an injunction hearing, and thus the
> argument focused on a narrower set of issues.  In this, I believe you
> are correct.  Later, when refuting my claim that the broader argument
> had never been fully tested in court, you cited the circut court's
> "ruling," saying that "the 9th circuit backs me up."
>
> You can't have it both ways.

I'm not talking about the 9th circuit's ruling in the Napster case.  I'm
talking about the 9th Circuit's decision in the Diamond case which states
that the Rio is "entirely consistent with the Act's main purpose" of
allowing individuals to make digital recordings for their "private,
non-commercial use." (refering, of course, the the AHRA of 1992).

> Naptster won a hearing and lost a hearing.  To my knowledge, they
> never fully aired their arguments in court nor obtained a full and
> binding opinion that would have any precedent-setting effect.  Please
> provide a citation if you're aware of such a decision... until then, I
> think it's fair to say that Napster's argument, while interesting, has
> no relevance.

No relevance?  My entire point is that the argument can be made and law
exists to support it.

There's no caselaw to PROVE either side.  That is to say, the courts have
definitely NOT come down and said that all copying and distribution of
copyrighted works are infringement.  But the courts have AT LEAST claimed
that the intent of laws before the DMCA was to MAINTAIN the protection for
private, non-commercial copying and distribution.

> Leaving that detour behind (I hope), let's take a look at what you
> said was your major point: "copyright law cannot practically and
> therefore does not cover non-commercial activity between individuals."
> 
> If I'm parsing that correctly, you seem to be arguing:
> 
> 1. Enforcement of copyright law is not practical when it comes to
> punishing the actions of individuals.
> 
> 2. What copying individuals do between themselves is not subject to
> copyright law.

That's pretty close.

> I would be interested to see an example of where the practicality of
> enforcement has negated a law.

The Communications Decency Act, for one.

> Indeed, most (I'd say virtually *all*) personl conduct laws fall into
> the category of "impractical to enforce."  Why do we have laws against
> speeding, slander, fraud, or any number of other forms of conduct?

(Slander isn't illegal, it is merely grounds for a private suit seeking
restitution for damages.)

> It is highly impractical to imagine that anything but the slimmest
> percentage of acts of speeding draw citations.  Laws are laws and
> enforcement is another issue entirely.  Frankly, I wish that the
> enforcability of laws *were* more of a factor, but I'm having a tough
> time seeing where it currently figures in the equation at all.

Well, read up.  There are plenty of laws that don't stick around due to
unenforceability.  The problem is, of course, that it takes a fairly
peculiar case or an independent equal protection claim to even get this
aspect of a law considered by the court.

> Which brings us to the claim that what individuals do among themselves
> is not covered by copyright law.  First, I'd invite you to
> substantiate that claim, perhaps with some analysis of the "common law
> fair use" you alluded to elsewhere.

I'm really not up for something that complete right this minute, but I do
refer you to the previously quoted bits from the 9th Circuit's decision in
the Diamond case.

Simply put, though, the historical interpretation of copyrights since the
1790 Statute of Anne has been an exclusive right to commercial
distribution of a work.  Infringement suits for non-commercial use have
only existed in the past twenty-five years.

> In the meantime, I have one question: If copyright law doesn't apply
> to individuals, who *does* it apply to?

It applies to commercial activity, be that of indivdiuals or
organizations.

But organizations cannot participate in non-infringing copying and
distribution because work done by organizations is ALWAYS commercial or
promotional and implies endorsement.

> Is there some other kind of legal entity running around that I'm
> unaware of?

There are all kinds of non-individual legal entitities... from the
publicly held corporation to the limited liability partnership to the 503C
non-profit organization to the "private club".

> You'd be hard pressed to show that this law only applies to business,
> but I'd love to see you give it a try.

It only applies to commercial activity and except in a very few clear-cut
cases, an individual has plausible deniability that an action was
commercial or promotional.

> But then I get confused when you claim that "every revision of the
> Copyright Act since about 1840 is unconstitutional."  In effect, it
> would seem that you're prepared to simply disregard 160 years of
> legislation and jurisprudence.
>  Sounds a bit like wishful thinking to me.

It's wishful thinking in that it's not likely that the courts are actually
going to fess up and repeal the laws, but that's mostly because the
Constitution has taken a back seat to "common practice" and "perceived
public good" in the courts.

The simple fact that the codified Fair Use doctrine in the 1976 copyright
act was stated by the courts to be "an attempt to balance first amendment
rights and the interests of copyright holders" shows that the uber-law of
Constitutional gaurantee takes a back seat to commercial interests.

> But if we're going to delve into Constitutional arguments, what do you
> do with Art. I, Sec. 8: "The Congress shall have Power... 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."
>
> Congress is specifically empowered to pass laws that grant exclusive rights
> for a limited time.  That seems like a pretty definitive statement to me.

OK, you've officially "asked for it", in my book.  Here goes:

Congress is empowered to pass laws that grant exclusive rights for a
limited time... no doubt there.  But what SORT of rights concerning WHAT
and TO WHOM?

First and foremost: Congress shall have the power to... That's how Section
8 goes about delimiting the powers of Congress.  But the Bill of Rights
are AMENDMENTS to the Constitution and supercede what is written before.  
Specifically, the Amendment I states that "Congress shall make NO LAW
[emphasis mine]... abridging the freedom of speech, or of the press".  
Surely law which prevents individuals from freely sharing information is a
restriction of speech and press.  However, commercial activity is not and
has never been considered protected activity.  So it's possible for
Congress to make laws that restrict commercial speech and the commercial
press, but not that of free individuals.

But even if you reject this argument, there is the simple analysis of the
words of Article I Section 8, remembering that there is no extraneous
language in the Constitution.

To promote the progress of Science and the Useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.

So the mandate of Congress (if they choose to accept it) is "to promote
the progress of science and the useful arts" by doing a couple of very
specific things (if they choose to do anything at all).  Any attempt by
Congress to promote the progress of science and the useful arts by another
means than what is explicitly stated here OR to grant exclusive rights to
anyone but Authors and Inventors OR extend those rights beyond a limited
Time is contrary to the stated intent of the Constitution.

Now, let's look at the chain of respective ANDs in this clause:
Science AND the Useful Arts
Authors AND Inventors
Writings AND Discoveries

This provision is designed to allow Congress to promote SCIENCE by giving
exclusive rights to AUTHORS for their WRITINGS and to promote the USEFUL
ARTS by giving exclusive rights to INVENTORS for their DISCOVERIES.

Those who advance Science, and therefore, are the ones Congress should
encourage in order to promote science, are Authors.  Authors, in this
context, are scientific authors (else you're not promoting science),
which, even in the most broad interpretation, doesn't include authors of
fiction, musicians, painters, sculptors or dancers.  Copyright is an
implementation of this portion of Congress' power.  Specifically,
copyright exists to grant Authors exclusive Rights to Writings so long as
it promotes Science.

I would argue that the PURPOSE of such a law is to ensure that an author's
work is not corrupted by rewriting in a way not sanctioned by the
author... so that a scientific work maintains its original integrity long
enough to become fixed in the public mind and historical record before
being integrated into the works of others.  That's how it promotes
science.

The Useful Arts are distinguished from the Fine Arts.  There is no
provision for Congress "to promote the progress of the Fine Arts".  The
Useful Arts include things like carpentry, manufacturing, integrated
circuit design, and cooking and exclude things like dancing, painting,
sculpture, music, and oration.  Those who advance the Useful Arts are
Inventors and they do so by making Discoveries to which Congress can grant
exclusive rights for limited Times, so long as that action promotes the
Useful Arts.  Specifically, patent exists to grant Inventors exclusive
Rights to Discoveries so long as it promotes the Useful Arts.

I would argue that the PURPOSE of such a law is to grant a limited
commercial monopoly over a particular device or technique to a craftsman,
or useful artisan, if you will, so that the discovery is not kept secret
for fear of appropriation by a competitor.  Without a legal exclusive
right, a craftsman might hide his methods from the world and take them
with him to his grave.  Hence, it promotes the useful arts as a whole to
grant him exclusive rights so that the world may share in this discovery
and allow future inventors to build upon the idea or learn from its
failings.  That's how it promotes the useful arts.

Securing exclusive Rights to Writings and Discoveries to individuals or
collectives OTHER THAN Authors and Inventors is not at all supported in
the Constitution and any law that does this under the guise of promoting
Science and the Useful Arts is unconstitutional.

The Copyright Act has continually expanded its scope to include work
beyond writings and outside the promotion of science and secured exclusive
rights for entities other than authors and, most recently, negated the
concept of "limited Times" in all but the academic sense.  Copyright
protection of sculpture or music is outside the scope of the power granted
in Article I Section 8.  Securing exclusive rights of copyright holders,
beyond the original author, is outside teh scope of the power granted in
Article I Section 8.

> But the final arbiter of what is and isn't Constitutional is the
> Supreme Court.

A power the Marshall Court just decided it had for itself.  Not that I'm
going to dispute whether or not it was the right decision, just that the
Constitution doesn't give the Supreme Court that power.

> Let's take a look at what *they* have to say on the subject.
> 
> First of all, the four tests for Fair Use *are* tests.  You can see
> them being applied in Stewart v. Abend (1990) and elsewhere.  Since
> we're engaging in scholarship here, I'll make an unauthorized copy of
> the relevant paragraph from Stewart.  :-)

But you'll find that it is not a hard rule that all four tests be
satisified to qualify as fair use.  That's all I was saying.

> While we're on the topic of Supreme Court decisions, I'd be very
> curious to see what you would do with Harper & Row v. Nation
> Enterprises.

I've got all kinds of opinions on the case, but I'll just keep the portion
relevant to my argument.

> "Taking into account the four factors enumerated in 107 as especially
> relevant in determining fair use, leads to the conclusion that the use
> in question here was not fair."

> If you're aware of proof of your legal theories that are more
> convincing, more recent, or more relevant than what I've provided,
> please do share your citations.

I'm not really up for finding citations at the moment (and I'd also argue
that legal citations are harder to find on this issue due to the fact that
copyright holders tend to go all the way to court only when they are
assured victory), but if you don't concede this little point, then I guess
I could try to find a citation to support it.

Consider parody, satire and political commentary.  It's quite common for
such work to consist of huge portions of, if not entire, copyrighted
works.  They are often commercial or promotional in nature.  Yet, they are
protected and use of copyrighted material within them is generally
considered fair.

If infringement is defined as NOT meeting ALL FOUR of the tests, then
wouldn't the commercial nature of the satire or commentary make it
automatically infringing?

My argument has always been that one must not satisfy ALL of "the four
factors enumerated in 107 as especially relevant in determining fair
use" in order to be fair use.

> Until then, I would strongly suggest that making unauthorized copies
> of an entire copyrighted work is not only wrong, but illegal as well.  

Well, that statement is provably false in VERY SIMPLE terms.  Space
shifting, time shifting, and media shifting are all unauthorized copies of
entire copyrighted works and there are dozens of citations that show the
court's respect for their legality.

And again with the right and wrong.  That's a whole different bucket of
spatulas.

> You can make the case that authors *may* benefit from copying, but a
> meaningful interpretation of rights would suggest that it is right
> *holders* who are entitled to decide whether and how to benefit from
> their works.

Absolutely not!

The copyright holders do not determine how they would like to benefit and
whether or not a particular use impinges upon their ability to benefit in
their chosen way.  Hell no.  They must PROVE DAMAGES of a commercial
nature.  Otherwise, every criticism of a work could be construed as
damaging the "holder's" method of benefit.

And I would further point you to the above argument that copyright is not
a public service as a commercial benefit to authors, but is as a method of
retaining integrity of content and intent of an author's work for the
public record and posterity.  The profit motive is too strong and leads
immediately to the destruction of the individual liberties of all for the
sake of the profit of the few.

J.
-- 
   -----------------
     Jeme A Brelin
    jeme at brelin.net
   -----------------
 [cc] counter-copyright
 http://www.openlaw.org





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