

What wins: Freedom of religion or copyright? - h4pless

While feeling patriotic this afternoon, the song &quot;God Bless America&quot; popped into my head. As I didn&#x27;t remember all the lyrics, I did a search and the first set of lyrics I came upon:<p>http:&#x2F;&#x2F;www.scoutsongs.com&#x2F;lyrics&#x2F;godblessamerica.html<p>had a rather explicit copyright notice at the top. It struck me as I thought about posting it to a page, whether or not I could quote the song without permission from the copyright holder.<p>The thing of it is, the song explicitly states that it is a prayer, and then directs that prayer to God. So it seems that using it should be a right afforded to us under the free exercise of religion clause of the first amendment.<p>So I wonder, what takes precedence? A person&#x27;s legitimate claim to ownership of their creative work, or another person&#x27;s free exercise of religion?
======
dalke
To add more to the mix - all license proceeds go to scouting organizations in
the US. Why do you want to take money away from the girl scouts? ;)

(See [http://edition.cnn.com/2011/12/11/opinion/greene-
berlin/inde...](http://edition.cnn.com/2011/12/11/opinion/greene-
berlin/index.html) )

There's no freedom of religion issue here. Your religious principles don't
require you to sing that song, do they?

If they do, I'm curious how the text of a Jewish songwriter, concerning
Armistice Day, became a part of your religion. Did your religion start after
1938, or change its tenets?

FWIW, there is a religious exception in copyright law. Sect. 110[3] says "(3)
performance of a nondramatic literary or musical work or of a dramatico-
musical work of a religious nature, or display of a work, in the course of
services at a place of worship or other religious assembly;" is not an
infringement of copyright.

What you described does not fit that category.

Since the words are on Wikipedia, you can probably not worry about it.

~~~
h4pless
Alright, first off let me say that I am not a lawyer which is part of why I
asked the question, but the first amendment states:

"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech"

Belief in God is a pretty big establishment of many religions, and the free
exercise of such an establishment includes the recitation of such prayers
asking for his help. In as much, I believe there is a freedom of religion
issue here and I do not understand the amendment to indicate that religious
requirement to be necessary for protection under the first amendment.

My curiosity lies more with your 4th paragraph. Has anyone ever raised a
constitutional argument for any use of a copyrighted work outside of the scope
you have mentioned, which looks to be very clear that it only applies to
religious gatherings, or has anyone questioned what constitutes a "place of
worship" in our modern age? Is it completely beyond reason that someone could
argue that the internet is their "place of worship"? Many people attend all
sorts of religious ceremonies online. And their right to do that is _I
believe_ protected by the first amendment and I don't believe arguing peoples
beliefs are really ever deserving of an argument.

[branching off to address the 3rd paragraph and question

To your other question that seems slightly off topic but seemed provoking, the
reason these words became spiritually meaningful to me is that they describe a
time in our nation's history when we were fighting a war that the American
people had very little say in, in a foreign land and the best they could do
was pray to God to see the country that they loved through.

There are a lot of things going on in and outside this country that most
people can't do anything about more than pay attention to what's happening and
hoping (/praying) for the best. So it seemed relatable to the situation we are
in now.

And not that it's really any of your business but yes, my religion started
after 1938, in fact it started around 2007 when I became disillusioned with
the tenets of my religion, could not find a religion without the mandatory
governance of law and ritual and cultivated my own belief system given my
favorite teachings of many of the principle thinkers to create a system of
belief for myself. Is that a problem?

end 3rd paragraph response branch]

~~~
dalke
First amendment restrictions exist. There is always a tension between it and
other factors. For a trivial example, your right to free speech doesn't mean
that you can't be arrested for disturbing the peace at 3am by yelling out
Bible verses when others are sleeping.

However, if people usually aren't arrested for yelling at 3am, and it's only
because you are yelling out Bible verses that you were arrested, then
arresting you would be unconstitutional.

As another example, some religions require that members wear headgear. See
[http://en.wikipedia.org/wiki/Kippah#Kippot_in_secular_law](http://en.wikipedia.org/wiki/Kippah#Kippot_in_secular_law)
for some of the laws regarding the wearing of yarmulke. In general, if a
religious use is not singled out and there's no good safety or security reason
to ban headgear, then it cannot be banned.

Consider also one of the court cases I once read, about a lawyer who was also
a priest. He wanted to wear his clerical clothing while in the courtroom. The
judge refused it, on the grounds that it may unduly sway the jury. This
decision was appealed and upheld, as I recall.

Like I say, these decisions are often a matter of tension between different
needs.

So let's look at the copyright issue again. The copyright law does not place
extra copyright restrictions on religious practice. Thus, it is not directly
abridging the free exercise of religion. Still, as you point out, it can
incidentally place some restrictions on religious practices. But as I pointed
out, the law specifically grants religious services extra freedoms that the
general public do not have, so you would have to show that there is still a
serious restriction.

Suppose your specific case were taken to court. The judge would look to
understand the tensions involved: is your ability to practice your religion
being abridged by the prohibition of using copyrighted material outside of
religious services? How serious is that abridgement? What acceptable
alternatives exist?

For example, if you were in the Church of Irving Berlin, with 400 other
members, then you would likely have a stronger case than if you were one of
the three remaining Shakers, whose religious practices haven't changed much in
the last century. (And that's why I asked about your religion, because it does
have bearing to the question.)

You say that it's "spiritually meaningful" to you. However, there are any
number of things which can be "spiritually meaningful", many of which run
afoul of the law. "Spiritually meaningful" by itself cannot be a good
guideline.

As an interesting, if only somewhat relevant example, one of the Five Articles
of Faith that baptized Sikhs are supposed to have with them at all times is a
kirpan; a short dagger. Sikhs follow a warrior faith, and are charged to
defend the oppressed and persecuted. But wearing a dagger is illegal in some
places. See
[http://en.wikipedia.org/wiki/Kirpan#Legality](http://en.wikipedia.org/wiki/Kirpan#Legality)
for details.

If you can convince others to join in your faith, where the faith requires you
to violate copyright law, then perhaps you can get some legal judgment. But as
a single member of the faith you're not going to get a favorable judgment
given the reasons you listed. Again, the tension is that people can have many
different sorts of spiritually meaningful beliefs. Someone may truly believe
that it's best to go around at 3am to wake people up, as a way to spread
knowledge of their faith.

Do we allow all aspects of all faith to trump all laws? That makes no sense.

> "Has anyone ever raised a constitutional argument for any use of a
> copyrighted work outside of the scope you have mentioned"

I don't know the this (or really any) area law. A quick search finds
[http://en.wikipedia.org/wiki/Christian_Copyright_Licensing_I...](http://en.wikipedia.org/wiki/Christian_Copyright_Licensing_International)
and
[http://www.christiancopyrightsolutions.com/factsheets/](http://www.christiancopyrightsolutions.com/factsheets/)
.

The latter includes
[http://www.christiancopyrightsolutions.com/docs/factsheets/F...](http://www.christiancopyrightsolutions.com/docs/factsheets/FactSheet-
PerformanceRightsMyths.pdf)

> Myth #3: “The religious service exemption allows me to broadcast my church’s
> performances.” ... This was a real grey area until 2006, when a publisher
> named Simpleville took a radio station to court for rebroadcasting several
> church’s’ services, including the music portion. ... The court rejected the
> argument, stating that the exemption applies only to performances that occur
> at the place of worship; it does not extend to broadcasts of those
> performances.

The court decision is at
[http://www.leagle.com/decision/20061744451FSupp2d1293_11642](http://www.leagle.com/decision/20061744451FSupp2d1293_11642)
.

> the exemption does "not extend to religious broadcasts or other
> transmissions to the public at large, even where the transmissions were sent
> from the place of worship." H. Rep. No. 94-1476, at 84, reprinted in 1976
> U.S.C.C.A.N. at 5698-99.

I think that settles your question for you.

You ask: Is it completely beyond reason that someone could argue that the
internet is their "place of worship"?

Not at all. But when you say "the internet" do you mean a public webcast that
anyone can receive, or do you mean a place where members of the faith can get
together? These are quite different things.

If it's the latter, then I think you can make a good case that it's a place of
worship.

However, if it's broadcast to the entire world via the internet, then there's
little difference between that and broadcasting it over the airwaves, is
there? I mean, while the technology of the internet is only a few decades old,
the idea of broadcasts have been around for a century, and the law has long
ago adapted to that.

Consider also that publishing books and pamphlets are other forms of
broadcast. The New International Version translation of the Bible is under
copyright by Biblica, Inc. Many people use it as their Holy Book. Many people
believe that proselytizing is also part of that faith. That doesn't mean they
can violate copyright by making unlicensed copies of the NIV in order to
encourage others to join their faith.

~~~
h4pless
Dalke, first off, thank you for your exhaustive explanation. I might question
you on a few points, but right now it would seem senseless as I don't really
have anything that I disagree with relating to what you've said and you seem
far more knowledgeable about the subject.

My question stemmed from my misunderstanding of the law and a curiousness
about how my knowledge gaps might be exploitable (though not as much for harm
but rather protection). Thank you for taking the time to give me such a
thorough answer.

I was somewhat apprehensive to post my first question to HN, (especially one
that even mentioned religion) but you definitely gave me the best response I
could have hoped for. I definitely owe you one. Thank you.

~~~
dalke
You're welcome. Glad you found my response informative.

HN commenters are indeed a fickle and random group.

Cheers.

