[PLUG-TALK] Fair Use, etc.

Dylan Reinhardt dylan at dylanreinhardt.com
Thu Mar 21 14:50:26 UTC 2002


I don't have a lot of time, so I'll make this brief.  Fortunately, there's
not a lot of additional ground to cover.

Legal arguments can be quite far-ranging, speculative and fanciful in nature.
 The key to understanding the law is not in reading legal arguments or in
reading commentary, but in reading the *actual laws* and the *actual decisions*
that interpret those laws.  There's still lots of room to talk about how
the law *should* be interpreted or what the law *should* be... but if you're
making a case that you know what the law *is* then citations are in order.
 The law is neither intuitive nor easily reduced to a small set of core
principles.

You arguments contain a lot of good reasoning, some interesting interpretations,
and a clear familiarity with some of the more arcane detiails of American
legal and political history.  What they don't contain are citations.  The
technical term, I believe, for arguments made in absence of citations is
"conjecture."

Having said that, let's whip through some of your points:

> 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 

Aha.  Thanks for the clarification.  

The Rio case is also irrelvant, in that it deals with copies made for private
usage.  If you want to rip a CD you bought so that you can listen to it
on your MP3 player, that seems highly reasonable.  Making a VHS copy of
a tape that was broadcast on TV is dubious, but probably justifiable.  Making
multiple copies of that tape and distributing them to your friends is a
whole different ball of wax.

> No relevance? My entire point is that the argument can be made and law

> exists to support it.

And that entire train of thought was irrelevant.  Interesting, no doubt,
but utterly lacking in legal significance.  A legal argument is only relevant
if it has won in a significant court ruling.  Until then, it's just fancy
words... interesting, perhaps, but holding little or no legal value.

> There's no caselaw to PROVE either side.

You mean, aside from the Supreme Court rulings I cited and several others
besides? I have already demonstrated that the process of evaluating Fair
Use follows the rubric I outlined, not the simple profit-or-non model you
claimed.  If you're going to claim there's no proof, first address the proof
that's been submitted.

> Slander isn't illegal

You're right, it's a tort claim.  Many states and regulatory agencies have
adopted rules that make it illegal in some circumstances, but mostly it's
a tort.

> There are plenty of laws that don't stick around due to 
> unenforceability. 

Such as?  

> 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. 

Such a clear cut statement of opinion and yet no citations to back it up.
 

> Infringement suits for non-commercial use have 
> only existed in the past twenty-five years.

More opinions without facts.  Show me the cites.

> except in a very few clear-cut cases, an individual has 
> plausible deniability that an action was commercial or promotional.

Hate to break it to you, but "plausible deniability" is not a great legal
defense.  In any event, it doesn't get to the real issue, which is whether
what you're doing is legal.

As to your lengthy analysis of Article I, Section 8... yikes.  You take
an extremely rigid, literalist interpretation of the Article--which is fine--but
then proceed to interpret the First in very broad terms.  If you're going
to claim that Article 8 only covers *science* writing, then have the consistency
to note that the First covers *speech* and remains silent on the question
of entitlement to someone else's creative output.  Go ahead and be a literalist,
but not just when it suits you.

> 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.

It's not a little point.  

The reason there are so few citations to support your position is because
you made it up.  There are a lot of clever arguments that never go for a
final decision... that's because a lot of those arguments are entirely speculative.
 Real decisions are rare because real arguments are rare.

> Consider parody, satire and political commentary. 

Totally irrelevant.  We're discussing your desire to copy a documentary,
not your interest in writing a satirical essay about it.  Incidentally,
there are limits to parody too... but we do give it tremendous legal leeway.

> 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.

Those are reasonable, but mostly untested arguments.  Indeed, were they
already rights, there would be no need to codify them as many activists
(http://www.digitalconsumer.org/bill.html) are hoping to do.  

Anyway, we're not talking about that, but about *quantity* shifting, which
is totally different.

> 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.

Whatever you say, Karl.  Frankly, I'm happy giving up my "right" to steal
a copy of Revolution OS if that makes it more likely that someone will actually
go to the trouble of *making* it and finding a way to sell me a ticket to
it.  There is nothing to bicker about ownership of until someone goes to
the trouble of creating it.  THAT, my friend, is the purpose of exclusive
rights for a limited time... to enrich all by ensuring that those who go
to the trouble of making things don't see them immediately stolen.

You stand athwart more than a century of history and legal theory,  my friend.
 Your ideas may, in fact, be better.  But I await proof that they reflect
the laws of the land we live in.  Perhaps they should be, and maybe one
day you will convince us all of the error of our ways.  But until then,
please realize that the law consists only of what is on the books and what
is written in court decisions.  Fancy theories and impressive essays are
not the law.

I look forward to your reply, but will be unable to contribute more till
Monday.

Dylan







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