[DMCA-Activists] Re: [DMCA_Discuss] Balkin on 1st Amendment + DMCA, post-Eldred

[Dr. John Raymond Baker]

Mr. Johnson (Seth):
I really appreciated your well thought out, and well expressed analysis of
what
the recent Eldred case means. From a purely philosophical, and scholarly
position,
your interpretation of the import and meaning of the phrase "traditional
contours of copyright protection" is indeed a salient distinction, and I
agree 100% with you
about the implications for the DMCA, if reason were ruling the Courts.

However; the sour note I would interject is that, for all the high sounding
terms
which jurists use, they are, nonetheless, humans, and as far as the Supreme
Court,
are humans who were inducted into that grand court pursuant to nomination by
other , very political persons with an agenda about stacking the court, in
hopes that
future rulings would be done with that specific political shading (i.e. that
a "conservative court" would rule , by and large, in a "conservative"
fashion on issues).

Our country is in the throes of a very Republican/ Conservative ruling class
in my opinion. Republicans have traditionally, been very PRO big business,
and , in the
same vein, very anti-Everyman. At first blush, the copyright issue, would
APPEAR
to be about protecting the rights of the artist , and usually, artists are
seen as leftists
or at the very least, Democratic in leaning. But, this really is not about
some skinny long haired lead guitarist holding up a power to the people
salute, nor is it about a Beatnik in a coffee house with this book of beat
poetry.

It is not about writers such as myself trying to defend themselves from
being ripped off.

This issue is about the media moguls, the conglomerates, who are seeing a
trend toward
independent films, seeing a trend toward small groups being able to record
music on computers and market them through the internet, and it is coming at
a time when people are just not buying as much of anything as they once did.

The conglomerate fat cats are using the issue of "piracy", of P2P sharing,
and copyright infringement, as the straw men to attribute their decreasing
profits to, and since all politics is local, we see lackeys like Berman,
bending over and doing their masters bidding, and although, none of us likes
to think in these terms, the High Court , I believe did the same type of
flexion at the hip when Al Gore won the popular vote and the presidency was,
in effect , handed to Bush.

Anyone who deals with the issue of laws, statutes, and jurisprudence,
recognizes very quickly that there is NEVER an equal enforcement of the
laws. Laws become merely political footballs,and in the end, although I wish
laws were more shields, they end up become more of a sword than a shield,
used to punish the opponents of those in power.

I have said this before, and I believe it, that the ultimate power to deal
with the DMCA is multifactorial, and multidisciplinary. What I mean by this
is that, the people pushing the DMCA, i.e. the RIAA, MPAA, government, etc.,
get the money to carry on this unholy campaign, from US as consumers who buy
their products. And money is the key to it all. In investigations, they say
"follow the money". I say, that there is the golden rule,
them that has the gold...rules...and the corollary to that is, them that
rules, bows to them that has the gold. In this case, consumers / voters,
need to let both the government (who count on our votes to put them in
power), and the MPAA/RIAA know that we are not pleased, we are not happy,
and we feel our rights are threatened, and we do not intend to support those
who are attacking our rights. This combined with a vigorous attack legally
on the DMCA, and the announcement of a boycott against those who support the
DMCA, MPAA,RIAA, and BSA...will help to let them know that we are not
kidding.

But, the public must band together much as the Roman "fasces"..a group of
sticks bundled together that alone,  could be broken,  but bound together by
a common purpose, are unbreakable.

In closing, thank you for your continuing efforts to preserve our freedoms
Seth.

Cordially,
john
----- Original Message -----
From: "Seth Johnson" <address@hidden>
To: <address@hidden>;
<address@hidden>;
<address@hidden>; <address@hidden>;
<address@hidden>
Sent: Saturday, January 18, 2003 10:00 AM
Subject: [DMCA_Discuss] Balkin on 1st Amendment + DMCA, post-Eldred


>
> (I said early on that the aspect of the Eldred case that
> held the moist definite promise was not the limited times
> and public domain issues, but the fact that the Supreme
> Court had accepted for consideration the petitioners' second
> question, addressing the lower court's assertion that there
> was no First Amendment consideration in the case. -- Seth)
>
>
> > http://balkin.blogspot.com/
>
>
> Is the Digital Millennium Copyright Act Unconstitutional
> under Eldred v. Ashcroft?
>
>
> In an earlier post, I strongly criticized the Supreme
> Court's First Amendment analysis in Eldred, arguing that the
> first amendment issues were not well thought out and that
> the Court seemed so preoccupied with the Copyright Clause
> that it dismissed the First Amendment issues as an
> afterthought. But anyone who understands the important
> connections between the free speech principle and the public
> domain should also understand that there is no way you can
> resolve the First Amendment issues in the case simply, or
> without making new law, and if you don't pay careful
> attention to the larger picture, even what appear to be the
> simplest and most uncomplicated statements of law will have
> all sorts of unintended side effects.
>
> As a lawyer and legal scholar, it's my job, when confronted
> with decisions I don't particularly agree with, to make
> lemonade out of lemons-- to see how the court's reasoning
> might apply to future cases in ways I do approve of. And
> after thinking about Eldred's First Amendment analysis, it
> seems to me that the Supremes have made new law that puts
> the DMCA into question.
>
> The key holding of Eldred is that "when ... Congress has not
> altered the traditional contours of copyright protection,
> further First Amendment scrutiny is unnecessary." The reason
> for this is that fair use and idea/expression provide
> "built-in free speech safeguards," which "are generally
> adequate to address" the problem that copyright makes
> reproducing certain speech illegal. Slip Op. at 31.
> According to Justice Ginsburg, alteration of time limits in
> the CTEA does not "alter[] the traditional contours of
> copyright protection," presumably because "limited
> monopolies are compatible with free speech principles" Slip
> Op., at 28, as long as they are limited and as long as the
> traditional contours of fair use and idea/expression
> distinctions remain in place. It's unclear whether Ginsburg
> means to say that any copyright term extension short of
> perpetuity would raise no first amendment issues, as long as
> fair use and idea/expression are not touched, or whether she
> is just saying that the CTEA isn't a very significant
> extension in the larger scheme of things. But either way,
> she does seem to rest first amendment protection on two
> other elements of copyright law: fair use and
> idea/expression.
>
> Well, what happens if Congress decides to "alter[] the
> traditional contours of copyright protection," by greatly
> restricting fair use, or begins to offer protection to ideas
> in the guise of protecting mere expression? In that case,
> "further First Amendment scrutiny" would be necessary. If
> Ginsburg does not mean this, then its hard to see what her
> argument amounts to other than a blank check to Congress to
> rewrite copyright law any way it wants.
>
> And that brings us to the DMCA. As many people know, the
> Digital Millenium Copyright Act creates a new species of
> intellectual property protection, sometimes called
> "paracopyright," that protects not copying itself but the
> creation of various devices and technologies that might be
> used to facilitate copying by circumventing copyright
> management devices. The DMCA prohibits the distribution of
> technologies that circumvent copyright management devices,
> and the Second Circuit has held that it reaches even linking
> to sites where such technologies may be found. Moreover, the
> DMCA protects copyright management devices from
> circumvention even if these devices are employed
> deliberately to prevent people from using copyrighted
> materials in ways completely consistent with fair use.
>
> Does the DMCA "alter[] the traditional contours of copyright
> protection"? Yes, it does, in two respects. First, it
> creates a new property right that allows copyright owners to
> do an end run around fair use, effectively shrinking the
> public domain. Second, it extends that property right to
> prohibit the use and dissemination of technologies that
> would protect fair use and vindicate fair use rights.
> Congress has exceeded the traditional boundaries of
> copyright protection, superimposing a new form of
> intellectual property protection that undermines the
> "built-in free speech safeguards" crucial to the holding in
> Eldred. Hence, under the logic of Eldred, the DMCA is
> constitutionally suspect.
>
> Three caveats about this argument.
>
> First, do I think that the Supremes understood the
> consequences of what they were doing when they wrote the
> words "traditional contours of copyright protection"? No,
> because as far as I can tell, they are pretty much clueless
> about the interface between first amendment law and
> intellectual property and how that interface has been
> affected by the new information technologies. I specifically
> include Justice Ginsburg in this, even though she is related
> to one of the foremost copyright scholars in the United
> States. By defending extended terms on the theory that fair
> use and idea/expression were effectively held constant, they
> opened themselves up to the argument that fair use and
> idea/expression have not been held constant, and that they
> won't be held constant in the digital age. That's why I
> think they were clueless. But they said it, and now we have
> to live with what they said, and for those of us who think
> the DMCA is a bad statute, Eldred creates a new argument for
> its repeal or for a constitutional challenge.
>
> Second, as Bill Clinton would say, it all depends on what
> you mean by the word "traditional." If the notion of
> "traditional" has any teeth to it, paracopyright is not
> traditional. If you say there is long tradition of giving
> media interests anything they want in the copyright field no
> matter what, then I guess paracopyright is as traditional as
> any other form of politically sanctioned protection of
> corporate interests. A more plausible response, I think, is
> that the idea of "traditional copyright protections" is a
> bad test for the digital age. It can't be the right way to
> assess the first amendment values at stake, and it's as
> short sighted as the notion that only traditional public
> forums- streets and parks- deserve first amendment
> protection in an age of television, cable, and the Internet.
> But that's an argument for why Eldred was wrongly decided in
> the first place.
>
> Third, the fact that the DMCA is subject to first amendment
> scrutiny under this argument does not mean that it
> necessarily falls. But I think there is a strong argument
> that if you take seriously the logic of Eldred, it must
> fall. Copyright has both temporal aspects-- length of
> copyright term-- and horizontal aspects- scope of rights at
> any one point in time. Ginsburg's opinion suggests that you
> can expand copyright protection temporally as long as you
> don't mess with the horizontal aspects that preserve free
> speech interests. Congress clearly did mess with those
> horizontal aspects in the DMCA, and so, under the logic of
> Eldred, it infringed on the "built-in free speech
> safeguards" of copyright law.
>
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