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April 17, 2012

Mike Masnick: No. Wrong. Stop That.

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Posted by Alan Wexelblat

A couple weeks ago, I took TechCrunch's Mike Masnick to task for being wrong about the current purposes of copyright under US law. A Copyfight reader pointed me to Masnick's follow-up piece in which he vigorously re-asserts this wrong position.

I feel compelled to repeat before I light into this that my personal belief is that the current construction of copyright law in the US is far too tilted in favor of maximalism, by which I mean putting the rights of copyright holders above other considerations such as scholarship and the general welfare. It was obvious to me that SCOTUS would see how Eldred should be decided, and how continuing to extend at whim the term of copyright violated the originalist language of "for a limited time." As the man said, I may have been (on the) the losing side. Still not convinced it was the wrong one.

What I am convinced of is that Eldred remains the current settled law of the land, and that officials such as Maria Pallante, the Register of Copyrights, have a duty to follow and uphold the law until such time as it's changed. Let's not forget this all started with Masnick hyperventilating about how her statements in favor of copyright maximalism made her incompetent to do her job.

Now let's look at Masnick's current long screed. Without delving into too much detail what he seems to be harping on is the distinction between 'purpose' and 'method.' He still asserts that the purpose of copyright is contained it its preamble language, and that the methods should serve that purpose and that's what everyone else should believe, too, or they're wrong and he's right. This is a less well-written version of the Breyer test and I really do recommend that you, and Masnick, go reread that opinion. Breyer's writing on IP matters is not always good enough or clear enough, but in this case I think he makes the argument cogently and persuasively. But as we reread, let's keep in mind Breyer was writing a minority opinion. Breyer's side didn't win that case (Golan v Holder) and thus it is not the law of the land.

Masnick seems to think he can bolster his argument with a "bunch of quotes" (his words) that support his view. Dear Mike Masnick, I can personally guarantee you that every losing side in every SCOTUS case came equipped with more than a few "quotes." They had amicus briefs, and detailed citations of precedential cases that they believed supported their side. Having a bunch of quotes doesn't make you right and the other guy wrong.

With very little due respect to Chief Justice Roberts, the job of a judge - particularly a Supreme Court justice - is a hell of a lot more than just calling balls and strikes. It's weighing meanings, and examining evidence that supports potentially contradictory interpretations and deciding which one is right. Precedents exist, but may not apply. Or someone else may read that precedent differently than you read it. If you read a dissenting opinion in a Supreme Court case you may find language that says, in effect, "those other five guys are wrong." Justice Scalia is known for taking his colleagues to task in his minority opinions for, in his view, being wrong. He does this in great detail, with extensive citations and as much weight of authority as he can bring to bear. But that doesn't make him right - the majority opinion remains the majority opinion and thus the governing interpretation of our laws.

Which is to say, you can't just pick a few quotes that support your opinion and then say, "See, this means the law says what I think it says." Well, apparently if you're Mike Masnick you can. But I'm still going to laugh at you for doing it.

Comments (11) + TrackBacks (0) | Category:


1. Miriw on April 17, 2012 12:51 PM writes...

This continuing series of posts is incredibly petty. I must have missed the lines in Eldred and Golan that definitively established that the purpose of the progress clause was something other than a utilitarian bargain. My understanding was that those opinions are strongly in favor of leaving the balance struck by that bargain in Congress' hands, not reading it out of the Constitution altogether as you seem to suggest.

Accordingly, these posts seem a little over the top. Not that Masnick's aren't. But you aren't doing yourself any favors by self-righteously claiming the mantle of "reason" (as in your previous post on the subject) and laughing at a view you consider to be naive. Masnick's points are more justified than you allow, though they are certainly hyperbolic. I'd rather these petty squabbles didn't clutter up my RSS feed.

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2. Crosbie Fitch on April 17, 2012 1:30 PM writes...

Mike Masnick is a copyright agnostic at the best of times, but he does seem to take as his core precept copyright's petty pretext of being enacted for the benefit of the people - the encouragement of their learning (in both Statute of Anne 1709 and US Copyright Act 1790). That legislators would be obliged to insert a philanthropic pretext when granting a privilege entirely in state & corporate interests seems to elude him.

What also eludes many people is that the so called Progress Clause of the Constitution neither grants nor empowers Congress to grant Copyright. Madison inserted the clause with copyright in mind - and also felt obliged to prefix it with a glib pretext "to promote the progress..." - but he was unable to explicitly empower Congress to grant that monopoly (though could be explicit when it came to granting "Letters of Marque" further on). He was unable to because the grant of a monopoly was anathema - the most he could do was to empower Congress to secure an author's exclusive right to their writings. And this was in the hope people wouldn't notice his/Congress's later assumption of power to grant the monopoly of copyright - derogating from the citizens' liberty instead of securing their privacy (their natural and unalienable right to exclude others from their private writings).

So, no, despite pretext, copyright was enacted in the interests of the state and the press. To insist that it's pretext must be both its motive and outcome is denial of the obvious. You cannot encourage learning by prohibiting the people from copying each other. To learn is to copy - from OE Leornian - to follow in another's footsteps - to copy another's path. Our bodies copy from our DNA upwards and our minds from Homo Sapiens 500,000 years ago onwards. The banning of copying in 1709 was not intended to produce more Shakespeares, but to quell sedition and restore to the Stationers' Company the monopolies they had enjoyed until the expiration of the licensing of the press act in 1695.

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3. Alan Wexelblat on April 18, 2012 1:00 PM writes...

Oh ouch. Very well, point taken. I promise to try and keep to more substantive matters.

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4. john e miller on April 19, 2012 5:48 AM writes...

Quote M. Crosbie Fitch:

Once upon a time, before a wicked Queen made a dreadful bargain, people were free to sing each other’s songs.

And three centuries later, bankruptcy or jail awaits the delinquent youth who dare offend those privileged with the suspension of their cultural liberty.

Copyright to John Lennon’s work may well be a matter now out of Yoko’s hands.

Either government abolishes this instrument of injustice, or the people will. Whereas an individual’s conscience may pang them to restore the public’s liberty, publishing corporations lack all such compunction – monopolies are as crack cocaine to these immortal entities.

-- and as I (further) replied:

"Meanwhile, on Planet Earth ..."

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5. Crosbie Fitch on April 19, 2012 3:40 PM writes...

John E Miller, you can now add extradition to the list (qv Richard O'Dwyer). Enforcement will ratchet up until something snaps...

Meanwhile, as you say, "on planet Earth", some of us are exploring and explaining what must fill the vacuum left by copyright's abolition, both in terms of law and the means by which artists exchange their art for the money of their fans - when there are no publishing corporations to purchase and exploit state granted monopolies arising.

Are you impatient?

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6. Anonymous on April 20, 2012 11:55 AM writes...

... and you are spending your time exploring and explaining what should come *after* Abolition of Copyright?

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7. Androgynous Cowherd on April 21, 2012 4:46 AM writes...

A clear reading of the Constitution plainly establishes that the purpose of copyright is to promote the progress of science and the useful arts. Enriching authors with a temporary monopoly is the means to that end. The Register of Copyrights is, indeed, putting the cart before the horse by claiming that that means is the end.

As for the inevitable abolition of copyright law by the public, given the proliferation of file-sharing tools and sites I'd say it's already well under way.

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8. Crosbie Fitch on April 21, 2012 2:45 PM writes...

Androgynous Cowherd, a "clear reading" of the US Constitution will reveal to you that the copyright act of 1790 is not mentioned (nor is The Statute of Anne of 1709), nor is its purpose, which is declared in the 1790 copyright act to be "the encouragement of learning".

It is pure hypnotism that people believe the US Constitution says anything about copyright (the right to copy, annulled in the majority, to be left, by exclusion, in the hands of a few - copyright holders).

It is deep programming that has nearly every US citizen faithfully declaring that The US Constitution specified copyright would promote the progress of science - and that it therefore empowered Congress to grant this privilege.


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9. john e miller on April 24, 2012 3:57 AM writes...

What Article I Section 8 of the 1787 US constitution *does* say is that Congress shall have the power --

8: 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;

So the 'abolishment' of copyright would require a constitutional amendment saying that Congress does not in fact have such right as above which would not seem to be a high priority on the National agenda...

... Hypnotism or otherwise.

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10. Crosbie Fitch on April 24, 2012 4:56 PM writes...

The Declaration of Independence

The Declaration of Independence of the Thirteen Colonies

In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.1 — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

1 Per Wikipedia This has been called “one of the best-known sentences in the English language”, containing “the most potent and consequential words in American history.” The passage came to represent a moral standard to which the United States should strive. This view was notably promoted by Abraham Lincoln, who considered the Declaration to be the foundation of his political philosophy, and argued that the Declaration is a statement of principles through which the United States Constitution should be interpreted.

So, john e miller, Congress has power to SECURE the author's inalienable, natural, exclusive right to their writings, i.e. to protect their natural right (equal power) to exclude others from their writings. NB We have no natural power to give someone our writings (include them) and then exclude them - as copyright holders are gradually realising today, even with draconian enforcement powers). Congress can only secure the right to exclude others from our writings that we already have (that we were imbued with by our creator/nature).

Congress does not have power to annul its citizens right to copy, to abridge their liberty to share and build upon their own culture. The Constitution did not stipulate that Congress had the power to grant the privilege of copyright - unlike its stipulation that Congress had the power to grant Letters of Marque.

So, Congress should and can abolish the privilege it had granted without Constitutional power, i.e. the US Copyright act of 1790 and all enhancements thereafter.

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11. Anonymous on April 26, 2012 4:13 AM writes...

Should; Can; and almost certainly Won't.

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