
US Citizens Should Try The Copyright Monopoly As Unconstitutional - zoowar
http://falkvinge.net/2012/01/08/us-citizens-should-try-the-copyright-monopoly-as-unconstitutional/
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jerf
This is what "fair use" is; it's a (legal) harmonization of the first
amendment and the original Constitution. As far as the legal system is
concerned, it settled this matter hundreds of years ago. I doubt you'll
convince anyone to reopen the matter, and this isn't the avenue we should take
anyhow. If you're going to go strict Constitutionalist, the word to be
focusing on is _limited_. Is it a limited time when Congress retroactively
extends the copyrights every time the expiration dates approach?
Unfortunately, Lessig tried this last time and failed, though the ruling was
such that the next time it comes up it might do better.

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jxcole
Not correct. This is one of the things I dislike about the constitution and
why when someone tells me I should go into law, I say that I would hate it.
When the constitution says "freedom of speech", it has nothing to do with
speech. What it is interpreted as is "freedom to express one's opinions". To
be sure, this is better than freedom of speech. Speech is something that you
do with your mouth. Freedom of speech does not explicitly protect your freedom
to write stuff down, much less freedom to transmit information across a wire.
It is only about speech.

I wish the constitution actually said "freedom to express one's opinion". The
problem with the way it is now is that the supreme court could easily take
away our freedom of expression. Right now, they interpret freedom of speech to
be freedom of expression but in the future they may change their minds and
decide that "freedom of speech" really means "freedom to cook waffles".

There really isn't that much correlation between what the law says and what we
actually get out of it.

But back to the main point, "freedom to express one's opinions" may not be
limited by copyright monopoly. Copyright is over a particular way to express a
particular set of opinions or facts, not over the opinions or facts
themselves, so copyright doesn't apply.

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rsanchez1
The example given is an example of speech.

"If I write a poem, you are legally prohibited from reciting that poem in
public or to a stranger..."

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te_platt
It's a nice thought but tried many times before, never with success.
<http://lawreview.law.pitt.edu/issues/65/65.2/McGowan.pdf> gives a nice
review.

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kgo
By this argument wouldn't defamation and libel also be legal?

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andrewpi
Exactly. The OP argument is too cute by half. Basically the 1st Amendment
protects "the freedom of speech", not all speech. Courts have routinely ruled
that the freedom of speech doesn't extend to libelous material, and I'm pretty
sure they would conclude likewise about copyrighted material.

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mcculley
Didn't Lessig already argue this to the Supreme Court and lose?

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GHFigs
If copyright were declared unconstitutional, that would render the GPL (et al)
toothless.

Edit:I'm sorry that someone was offended by this, but I thought it was worth
mentioning given that many of those that might celebrate arguments against
copyright would consider this an undesirable consequence of that happening. I
never know with the HN crowd.

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rektide
This has to be one of the least eloquent, least stirring most important ideas
ever. We live with hypertext, in a world where Marshal McLuhan's entire
"medium is the message" rules us in deeply different interconnected ways, yet
people are allowed to claim mediums for themselves as inventions when in fact
it's merely expression, not novel craft.

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tocomment
I was under the impresssion the first 10 amendaments were released with the
constitution. They aren't actually "amending" it. Is that not the accepted
viewpoint?

Are there other cases where the one of the first ten amendments supercedes
something in the constitution?

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sp332
The Bill of Rights was proposed as part of the original constitution but was
left out as a compromise. Most of the opponents weren't against the rights, on
the contrary they thought the bill would be redundant and unnecessary.

When it was clear that the rights would be presented as amendments to the
original constitution, James Madison broke them up into 12 individual
amendments. Only 10 were passed, several years later. An 11th was ratified in
1992, 203 years after it was proposed [https://en.wikipedia.org/wiki/Twenty-
seventh_Amendment_to_th...](https://en.wikipedia.org/wiki/Twenty-
seventh_Amendment_to_the_United_States_Constitution) The 12th (which was
actually the "first") has never been ratified.
<https://en.wikipedia.org/wiki/Article_the_First>

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tocomment
So are there any examples where an amendment 1-10 was treated as an amendment
and overruled something in the constitution? Or do courts not see them as
"amendments?"

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kbob
I like the term, "Copyright Monopoly". It is accurate, and it has a less
pleasant connotation than Intellectual Property or just plain Copyright.

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Tycho
More like, it's redundant. Copyright is by definition a monopoly. I find the
phrase amusing in its attempt to invoke some sort projected instinctual fear
of monopolies that we're all supposed to possess.

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aneth
The 21st amendment "overrides" the 18th amendment not because it comes later,
but because it specifically repeals the 18th amendment:

"The eighteenth article of amendment to the Constitution of the United States
is hereby repealed."

If there is any precedent for the statement that "a later amendment supersedes
earlier text of the constitution" this is not an example.

A better argument, unfortunately rejected by SCOTUS, is that unlimited
extensions to copyrights as currently allowed are not permitted by the
copyright clause, which authorizes exclusive rights to authors for "limited
Times." Unlimited extensions should not be allowed any more than should one
million years be allowed as copyright term.

