On Thu, 29 Jul 1999, John Lederer <johnl[_at_]ibm.net> wrote:
>
> It seems to me that the concept that copyright laws do not infringe on
> the First Amendment is starting to get pretty tattered:
>
> (1) I find it difficult to apply the "idea" 'expression" dichotomy to
> the Scientology cases, where it seems to me that Copyright was actively
> used to prevent discussion of ideas. Indeed, any time the expressions
> of an author are used to discuss the author the idea/expression concept
> seems very tenuous to me.
Yes, I was closely watching, as well as participating in discussion, on alt.religion.scientology during the time the "Church" of Scientology (CoS) was flexing their litigation muscle in the area of copyrights. One important matter to the Scientology "religion" (somewhat similar to Islam's teachings on the Koran) is that the exact wording of Hubbard's dribble is vital to their religious practice. Fine.
But this leads to an interesting Catch-22 when trying to discuss and debate Scientology If you paraphrase Hubbard's words, a Scientologist believes that the argument is invalid because one did not use the exact words. If you quote his words exactly even in Fair Use, and do so in a critical way, no matter how short, you face the real threat of being sued into oblivion for copyright infringement, even if Fair Use is on your side.
And for those of you here who do not understand Scientology, they have a specific teaching, and quoting Hubbard's words, to my peril: "the purpose of a lawsuit is not to win..." It's purpose is to destroy the other person. Scientology does not care if they lose a lawsuit on Fair Use -- and they have lost on this in a big way with sanctions -- all they want is to force the other person into litigation, to spend their money, and then they continue to litigate the matter with appeals on appeals, to drive the person into submission, or bankruptcy.
And this is what the ambiguity of Fair Use, and copyright law, does to Free Speech rights.
Don't even get me to talk about court-sanctioned raids on critic's homes using the allowance in Copyright Law to do so. It's another abusive thing about present Copyright Law that can be used (and has) to stifle First Amendment Free Speech rights.
> (2) Fair use has become so uncertain a concept that it leaves one in
> perpetual doubt whether one is covered by its mantle or not. This
> doesn't work in the area of free speech.
I agree.
> (3) The loss of a requirement for a notice of copyright made a major
> transformation in the law from "all is permitted that is not forbidden"
> to "all is forbidden unless permitted". The result of course is
> widespread disobediance -- intentional, inadvertent, by necessity, or
> by commonsense -- of the law.
Again, I agree fully.
> (4) The extension of terms to increasingly long periods in the midst
> of technological,economic, and social changes that argue for shorter
> periods merely increases the tension.
Yes, I firmly believe that even current copyright terms are wholly unconstitutional. As I think about the section in the Constitution establishing copyright law, one cannot separate "limited time" with the purpose of copyright law -- it has to be considered holistically:
Article I, Section 8: "The Congress shall have the Power to promote the progress of Science and useful Arts by securing for a limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
I argue that this means Congress cannot set a term any longer than that necessary to promote the progress of science and useful arts. Thus, the test for the constitutionality of a copyright term has to include specific consideration of the minimum necessary for promoting the progress, and no more (because of the word 'limited'.)
> Copyright enforcement has already started to become a matter of bluster
> and threat and selective enforcement. Few public agencies are willing
> to take the political heat of enforcing the law, so its enforcement
> increasingly becomes a matter for private associations formed by those
> who benefit from the law.
Not only that, we are beginning to see the penalties for various forms of criminal copyright infringement to get more extreme. When I look at the DMCA, where trying to bypass IP protection measures is a violation of law, the penalties look like something you'd see for drug dealing.
I also perceive that more and more copyright infringement is being criminalized rather than being a civil matter. The only silver lining to this is that the defendent is afforded a little more Constitutuional protection in court.
> I think the system will eventually collapse. The chief reason, of
> course, is that it no longer accomplishes what it was designed to do.
> It doesn't promote the dissemination of knowledge . It retards it,
> and does so for the benefit of a very few.
Well said. I do see such a collapse coming.
Jon Noring
OmniMedia Digital Publishing
<noring[_at_]netcom.com>
http://www.exemplary.net/omnimedia/bookstore.html
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