Wow, you backed me up on something (the Constitution cannot be
superseded by any law), in a sort of back-handed way, but cool! I
liked your post about free speech in the U.S.A., too. I see an
intellectual honesty I didn't expect.
To Jeff and those who share his point of view, what I described really
is what our founding fathers were considering and writing about when
drafting the Constitution. The intellectual property rights were
meant to be exceptions, the general idea was information was to be
freely disseminated and free and copied as often as possible, more
freely than in any other society in human history, with only
extraordinary efforts being protected by patents and less
extraordinary but significant efforts being protected under what has
become copyright law. It's part of the freedom of being an American.
Letting information and arts flow freely promotes economic strength
and forestalls tyranny. There's a trade-off between having people be
able sue someone else (which would require the legal machinery of the
federal government) for using any thought they may have expressed or
used and allowing people to exchange information (for example, freedom
of speech) without fear of interference or prosecution by the federal
government. In the U.S., we've struck a balance decidedly toward
information and ideas being expressed and disseminated as freely and
openly as possible, with a consequence that intellectual property
rights are not always cut and dry, and are a little less protected
than you might think.
In the U.S., we let wackos carry guns, we let hate groups babble on
incessantly, and we let home MD users record CDs they don't own. The
first two are obviously unethical, you think the third is unethical
and I don't. But all three are legal in the U.S. (unless the wacko
has a criminal record or something). As a practical matter, I just
don't see the harm unless you are pushing someone else's music as a
commercial product and generating a revenue stream, while you see harm
in revenues foregone by those who own the intellectual property rights
but have people listening to their music for free. You think of it as
stealing, which I think is preachy and harsh and conceptually
incorrect, but I understand where you're coming from. It would be
very tough to prosecute someone criminally in this country based on
such speculative harm.
Now if you're selling minidiscs you made of a CD (whether you owned
the CD or not) on the street corner or on e-bay, bang-zoom you're
outta there, and in for a hefty fine at the very least. That's
commercial use. It's not a matter of if you owned the CD etc. you
recorded to MD, it's a matter of what you do with the MDs you
recorded.
Is trading an MD with your good friend commercial use? I don't think
so. But it's a grey area, I admit.
In all honesty, I think your being troubled by home recording of CDs
that people don't own themselves is understandable and is principled.
It's just not the balance we have chosen in the U.S. and the reasons
are rooted in our Constitution and in our history. We've chosen to
let the music flow like wine. The results have been incredible.
Enjoy!!! As a general rule, in the U.S., not until someone is very
clearly making a buck off of someone else's music, in a very concrete
way, does it become illegal. After all, copyright infringement may be
prosecuted as a crime, and the legal standards for proving a crime are
usually quite high in this country, since we don't want the government
to be able to prosecute willy nilly every hate-mongerer or home
recordist. We prefer to be free. We don't want the government
snooping around in our minidiscs. ; )
At least that's the way I see it. Believe me, these are far from
original ideas, they are just high-tech manifestations of ideas which
had their incipiency over 234 years ago, and they've changed the
world. In my experience, the views I have expressed are pretty common
fodder in scholarly legal circles. Perhaps, when you come to terms
with the literal, clear meaning of the AHRA, you will be less
astonished now.
BUT I DOUBT IT!!!! ; )
Regards to the list, Steve
On Mon, 27 Dec 1999 07:32:05 +6, in you wrote:
>> | The core of United Staes copyright law is the Constitution, laid down
>> | by our founding fathers. You perhaps do not understand the AHRA or
>> | the United States Constitution. See below.
>>
>> All of which was superceded by the Copyright Act of 1976, better
>> known internationally as the Berne Agreements, which is explicitly
>> clear as to what you are allowed to copy. The AHRA is a
>> clarification of and extension to the Copyright Act of 1976.
Wow!!! Thanks Jeff!!! (for the following:)
>
>Well, the Constitution was not (and cannot be) superceded by any mere
>law, but Steve's interprtation of that document is not one that's
>likely to be accepted by any court hearing a copyright case.
>
>
>=========================================
>Jeffrey E. Salzberg, Lighting Designer
>http://www.cloud9.net/~salzberg
>=========================================
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