John Bennett in First (free speech) amendment trumps copyright reflects on Mike Masnick’s observation that certain parts of the Emperor’s modesty may be visible from certain angles:
Mike Masnick takes up the question of the conflict between copyright and freedom of expression link here. I have to admit it came as a revelation to me. Is there any way to argue that copyright doesn’t limit one’s freedom of expression? If you think it does as I now do, then your argument conflicts with the First Amendment of the Constitution which says “Congress shall make no law… abridging the freedom of speech….”
This provision clearly conflicts with Article 1 Section 8 which gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;….”
I am no lawyer, but since the first amendment was passed on March 4, 1789 after the Constitution was ratified on September 25, 1789, it would logically override that part giving Congress such power (for dates link here). Of course, there is never any certainty about how the Supreme Court may decide an issue.
Mike recommends a book which I haven’t read yet, but his statement is pretty strong. He says David Lange and Jefferson Powell, the authors of No Law, “spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment.” They apparently backslide in the second half.
I do take personal exception to Mike’s comments on the State Department officials toadying to the IP interests. As a middle aged and fairly senior diplomat, I had to try to enforce our IP agreements with the Korean government. I had no option to express an opinion, but instead was told to enforce what I was told was the law.
John, as you’ll see in the comments to that article, I argue that there is no conflict whatsoever between the 1st amendment and the clause empowering the securing of an author’s exclusive right to their writings.
The problem is between the unconstitutional legislation of copyright (re-enacting the Statute of Anne in 1790) and the individual’s natural freedom of speech and cultural liberty – from which the natural right to copy was derogated (to grant the privilege of copyright).
Natural rights do not conflict with natural rights. You can have no freedom to speak that which you do not know, nor liberty to make copies of that which you do not have. If an author can naturally exclude you from their writings then they can naturally exclude you from copying them. Such are the natural rights that a government is empowered to secure.
Copyright is nothing to do with such a natural right, it is not even the securing of such. Copyright is the holder’s privilege to prohibit people who have been GIVEN writings, from making copies of what is in their own, legitimate possession – a diminution of their private property comparable to a burglar’s vandalism and so a form of theft.
- Copyright is theft.
- Cultural liberty is copyright infringement.
The doublethink to the contrary (copyright encourages speech, infringement is theft) is so Orwellian purchasers didn’t even blink when copies of his books in ‘electronic’ form were ‘unpublished’ from their private possession due to a copyright licensing issue.
Copyright indoctrination is now so ingrained it constitutes hypnotism or brain damage. And as with subjects of hypnosis, inherent conflicts in what one ‘knows’ to be incontrovertible are impossible to resolve – until the hypnosis is undone, until the indoctrination is deprogrammed.
But for people to confront the possibility that copyright is as much an ethical offence against human rights as slavery1 is so terrifying, that “No! Copyright must be good. Copyright is good!” snaps people back to the comfort of their programming.
1 Whereas slavery suspends all liberties from a few, copyright suspends a few liberties from all.