[PLUG-TALK] Fair Use, etc.

Jeme A Brelin jeme at brelin.net
Mon Mar 25 08:37:24 UTC 2002


On Sun, 24 Mar 2002, J.A.Henshaw wrote:
> Case law is NOT law and NOT constitutional, as Jeme said too - I agree
> with him there.

Well, that's not quite what I said (or at least not what I meant to
write).

It is simply true that the Constitution makes no provision for the
interpretation of law.  This is a flaw and a failing.  Justice Marshall
recognized that failing and, when the need for legal interpretation arose,
he appropriated that authority for the courts exclusively because it's the
only thing that made sense at the time.

It's two hundred years later and I think you'd still be fairly
hard-pressed to find a better solution.  That method isn't perfect and it
makes for political courts sometimes, but it's better than either
executives or legislators making the rulings... especially when the issue
is Constitutional.

> But then he goes on to analyze other things to pieces, rather than
> stopping RIGHT THERE.

I had other points... philosophical, rather than legal.

> It is Law that Patents protect inventions.  For the little guy.

Not quite.  Simple patent law ensures the spread of ideas to the public by
protecting the little guy's interests.  The idea is that the inventor
(being the only person who can legally hold a patent) is a practicing
useful artist and she would not use her invention publicly for fear that a
competitor would also use the idea and remove the advantage the invention
brought.  The public loses out because the invention is not shared.  So,
in order to benefit the public (and promote the progress of the useful
arts, as the Constitution puts it... note that it doesn't say "to promote
the livelihoods of authors and inventors"), the inventor's exclusive right
to the discovery is protected for a limited time.  This actually gives the
inventor BETTER protection than just trying to keep their discovery a
secret because they can use it openly without fear.  The public benefits
from the publication of the discovery with its filing at the patent office
and when the limited term of exclusive rights is ended, the rights of the
general public are restored (where they were temporarily suspended for a
greater public good).

However, modern patent law isn't so simple.  The basic idea that exclusive
rights are retained by inventors has been violated with the introduction
of the idea of a "patent holder" independent of the inventor.  The
transfer of those exclusive rights followed quickly behind this concept
and the whole system went to hell.  Also, the introduction of "trade
secret" legislation in many states further muddies the water by allowing a
company some limited protection for discoveries NOT shared with the public
EVER... this is also contrary to the basic intent of patent law to benefit
the public and promote the progress of the useful arts.

> Copyrights, Trademarks, I don't think the constitution mentions them.  
> I'll have to look again ;)

Inasmuch as you can say what you wrote above, "It is law that patents
protect inventions", it is law that copyrights protect writings.

See Article I Section 8.

Neither the word patent nor copyright is contained in that power, but the
concepts are roughly defined (and further refined by the First Amendment,
but the wealthy and powerful don't like that so much, so it doesn't get
considered).

The purpose of the two separate notions of copyright and patent are very
similar (the promotion of science and the useful arts, respectively) and
the implementation of law is very similar (the granting of exclusive
rights for limited times), but the mechanism by which these similar legal
structures achieve their purpose is quite different.  See my previous
email for a description of the mechanism by which exclusive rights to
writings for authors promotes the progress of science.  See the above for
a description of how exclusive rights to discoveries for inventors
promotes the progress of the useful arts.

As for trademark, that is a completely different thing.  Trademark law was
something devised by the Congress and enacted under the commerce clause of
the Article I section 8, rather than the copyright clause.  It is my
belief that the "Patent and Trademark Office" is a commingling of two very
different objectives into a single hybrid monstrosity.

> At any rate, the whole argument would be null if people would just
> wake up and look at the fundamental problem.

[followed, presumably, by "the fundamental problem]
> If you don't know that there common law remedies for all these
> "problems" then you are missing the point- while you labor away trying
> to convine each other who's right and guess at how a court is going to
> "interpret" a law/reg/code/statute you might as well toss a coin.
> 
> Common Law: A law is null and void for vagueness; If more than ten
> percent of the people disobey a law it is a bad law-

Common law is recognized in nearly every state in the Union (Louisana
being one quite notable exception for its reliance on Napoleanic code).

A vagueness argument is accepted in pretty much every appelate court in
the country.  Ask Randal Schwartz about his sometime... still pending
hearing, I think.

I cannot attest to nor discount the 10% number, but it sounds fairly
arbitrary and easily side-stepped.  I think it's probably more likely that
a "substantial number" sort of argument is best.  This is important
especially in issues relating to drugs or guns or technology where the
vast majority of the population hasn't enough interest in the topic to
have even considered an act that might be illegal.

> Why do I mention that?  Well, if a judge has to interpret a law, it is
> a bad law and should be null and void, and a jury can do so.
> 
> Now;  think about a Supreme court who have a split decision 3-2 on
> abortion or something: The founders are rolling over in their graves-
> If the "supreme" judges cannot agree it is a bad law. See?

Now, I used to have this idea about a sort of vast symbolic logic computer
where each person would write their own version of a law and submit it and
the machine would OR the laws all together and spit out the law that
EVERYONE agreed was fair.  The problem is that just a single anarchist
would make the world anarchic.  Now, I'm not opposed to a considered
social anarchy, but I just don't think society is well-enough developed to
handle such a thing... too much reliance on destructive behavior as a
motivator and sin as virtue.

Your argument amounts to the same thing.  Put one anarchist on the Supreme
Court and you'll never have another law stand.

Where would you put the interpretation of law?  Would you allow the
public's executive agents to make the decision, thus allowing them to
define criminal as be anyone who is suspected of crime?  Would you have
the legislators interpreting the law, thus changing their own powers at
their whim?

> ( I encourage everyone to look up the history on the NUMBER of supreme
> justices and WHY it was changed from an even number to an odd number
> and by WHOM )

Eh... the number of justices has fluxuated quite a bit... as low as 6, as
many as 10.  Hell, FDR wanted 15.

> Speeding: Do more than ten percent of us disobey? Marijuana? Mp3
> sharing?

See, there's where it gets tricky.

I think the numbers are easily skewed.  There's a big difference between,
say, americans writ large and the active music community, for
example.  In one, MP3 usage (let alone sharing) might be below 10%,
whereas in the other MP3 sharing might be as higher than 90%.

> It looks to me like copying things that are already in the public
> domain and NOT patented cannot be restricted unless you have a
> commercial adhesion contract binding upon you;  with the RIAA or
> whoever- UCC is what you are arguing.

Well, we're talking about copyrights, not patents and they're very
different things... but I'll do a mental s/patent/copyright/g.

I don't quite get what you mean by a "commerical adhesion contract".  I
can't imagine a situation where it is a benefit to the public to allow
restrictions on the spread of public information.

Now, maybe I missed it, but what's UCC?

> The question really ought to be:
> What venue am I in?  How did I get there? Why am I in a position that
> I have to let a judge decide my fate?

Yeah, well, much of that is decided by the wealthy information-masters who
claim ownership on the very thoughts we carry and expressions we share.

They shop for a friendly venue (usually in the entertainment-industry
dependent California or New York), sue you there and find a way to make it
stand, and put your actions up in front of a judge with more consideration
for the protection of their wealth and opportunity to exercise their power
than the law or the public good.

> Or am I? If so, is there a way to continue to share files or VHS
> copies or kernel code and do it without UCC having jurisdiction over
> me?
> 
> There is a way;  but first you must recognize the PROBLEM.
>
> This make any sense to anyone so far?

It'd be nice if that sentence had a complete verb.

But I don't think it would help me to understand the point of what you
were saying.

I got this much, "The law is a pact between the people and the public in
which they participate.  And while it is codified and executed by agents
of that public, its interpretation and validation still resides largely in
the actions of the people."

But I missed anything beyond that.

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






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