Intellectual Property

CBS Nixes Mayberry Civics Lesson

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Last January, I posted a YouTube clip taken from The Andy Griffith Show. It was a charming bit where Sheriff Taylor explains to Opie that it's illegal to eavesdrop on conversations between criminal defendants and their lawyers, and how in a free society any conviction resulting from such tactics does more harm than good.

The clip has since been pulled from YouTube after complaints from CBS Broadcasting.

I see this as a huge problem with copyright law. The Mayberry video wasn't posted so users could "steal" clips from the Andy Griffith Show that they otherwise would have purchased. Its presence on YouTube wasn't going to prevent anyone who would have otherwise bought the DVD of the show from doing so. Rather, it was posted to make a political point; either to allude to a time when civil liberties were more than mere formalities, or to poke fun of those naive enough to actually believe what Andy Taylor was lecturing Opie about.

I'd argue that a pretty substantial portion of the copyrighted material uploaded to YouTube serves the same or a similar purpose. It's splicing together clips from different sources, excerpting clips, or otherwise mashing different forms of media to make a point. That point can be something grand as the wholesale erosion of our civil liberties, or something a bit more mundane, like the fact that Carlos Mencia steals his jokes .

I'll have to plead ignorance here on the DMCA and the evolution of digital copyright law. How has it come to diverge so dramatically from print copyright protections? Seems to me that posting a short clip of copyrighted material for the purpose of analysis, juxtaposition, criticism, or to make a political point ought to carry the same fair use protections as excerpting passages from a book, newspaper, or magazine article for the same purposes. Why should one be legal and the other not?

Also, if I understand the Grokster/Morpheus Supreme Court decision correctly, the Court's objection wasn't to any and all technology that could be used to violate copyright, but to the marketing and advertising the technology for illegal purposes. YouTube clearly doesn't encourage its users to violate copyright law, and in fact polices its own site for infractions.

Given that the Supreme Court has traditionally afforded political speech more protection than other forms of speech (a distinction I personally find dubious), and that YouTube has already demonstrated its value as an influential and groundbreaking facilitator of political speech , I can't help but wonder if a Google challenge to the Viacom suit might actually be successful, and lead to that rare Supreme Court decision that weakens copyright law and expands the fair use of copyrighted material.

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  1. Mencia steals his jokes? Maybe, though his chief accuser also questions whether we went to the moon.

  2. “Seems to me that posting a short clip of copyrighted material for the purpose of analysis, juxtaposition, criticism, or to make a political point ought to carry the same fair use protections as excerpting passages from a book, newspaper, or magazine article for the same purposes. Why should one be legal and the other not?”

    Uh, it’s copyright law, made by politicians, who get big checks from the content-production lobbies. Do I need to draw you a map to the perverse incentives involved in this process? You’re smarter than this, Radley.

    As for why books are treated differently, they’ve been around longer, and the precedents of written fair use were developed in an era without strong content-production influence.

  3. I know how it happened. I was using a fancy argumentative technique known as the “rhetorical question.”

  4. Actually, it is quite common for comedians to use each others’ jokes quite frequently because many of them don’t actually write their own material after a point- or at least they have co-conspirators.

    One such example is Eddy Izard’s whole “cake or death” skit he did on stand up which was a blatant rip from Monty Python’s scene from Life of Brian where the criminals are asked if they prefer freedom or crucifixion.

    Penn & Teller did a whole comedy special on the dirtiest joke ever told and the many, many variations of it. Much like sampling in hip-hop, sampling material is quite common.

  5. Balko getting snippy!
    Look out!

  6. Perhaps some of the “copyright is the same as real property” people would like to chime in on how this is an awesome use of non-traditional property.

  7. Because Viacom is in litigation with YouTube and Google, and other media companies have a stake in the outcome, my guess is that they all are being especially picky about this sort of stuff right now and have been advised by their legal counsel not to let any even arguably “fair use” exceptions go unchallenged.

  8. You can get it put back by filling out the right form, claiming it’s fair use.

    Check out instapundit for the last week, about some law prof having her clip removed, and her getting it put back up. There’s even a website that will fill out the form for you.

  9. Radley Balko,

    Have you heard about the removal of Nick Gisburne’s video?

  10. It’s not common to use other people’s jokes the way Mencia does. If Mencia had ripped that scene from Life of Brian, he would have kept the joke the same. There’s a difference between “The Aristocrats” (a full length documentary, btw, not just a P&T special), which is commonly known to be a bit where every comedian tells it in a different way, and actually stealing recent material written and performed by other comedians. Mencia is notorious for the latter and has no respect among his peers.

    Oh, and copyright is complicated, huh?

  11. go to http://www.baen.com/library/ and click on the Prime Palaver link and then Prime Palaver #4 for a couple of speeches made to the House of Commons in the 1840s. Copyright has been an issue since mass printing made books affordable. These are well thought out articulate positions that are just as relevant today with DRM.

  12. Penn & Teller did a whole comedy special on the dirtiest joke ever told …

    BUUUZZZZZZZZ! Sorry that’s incorrect, but thank you for playing. The Aristocrats was made by Penn Jillette and Paul Provenza.

    OH and Copyright is anathema to freedom. It should be abolished.

  13. Perhaps some of the “copyright is the same as real property” people would like to chime in on how this is an awesome use of non-traditional property.

    Glad to oblige. All property rights are the legal result of policy considerations over the varying interests at stake. There are no such things as absolute property rights and CBS might well lose a “fair use” challenge in this case. On the other hand, rights in property are expected to be protected by the owner and failure to protect one’s rights can result in their loss. Hence, for example, the law of adverse possession and the creation of easements on private property merely through failure of the owner to bar entry.

    Okay, so maybe the case here doesn’t arise to “awesome,” but it might make more sense than is being portrayed here by some of the “copyright is not a real property right” crowd.

  14. I’m not jumping on the copyright-is-all-bad bandwagon, but I’d like to see the notch turned down from “11”. If people attempting to use works or portions of works in a fair use context must constantly spend money and time to defend themselves in such uses, then “fair use” has little meaning to most people. Since fair use has often been viewed as a safety valve to prevent copyright and free speech from conflicting, that is a bad thing. Still, I do think that intellectual property has played no small role in stimulating the production of new inventions and new expression of ideas. But crucifixion for violating copyright may be more protection than copyright really requires to serve that purpose.

  15. On the one hand, I can see how treating a small enough clip as Fair Use would be perfectly fine. On the other hand, the YouTube model is such that 22 different posters could put up one minute apiece of any particular sitcom, which users could then download and stitch together into an entire episode.

    On the gripping hand, CBS could repost the clip in question on their own Innertube site, and avoid any bad publicity.

    Kevin

  16. “All property rights are the legal result of policy considerations over the varying interests at stake.”

    All law is the legal result of policy considerations over varying interests. This sentence is like saying water is H20. But your argument is actually not too bad.

    Just to clarify: real property is an area of law dealing with real estate. The term “real” in this instance doesn’t refer to whether IP rights are “real” or fake. Real property has been around for 1000’s of years. IP, a couple hundred years. The right to own property is not a power specifically granted in the Constitution, probably because it was considered a fundamental right (don’t forget how property was intermingled with citizenship and voting at the time). IP is a privilege that had to be inserted into the Constitution or else Congress wouldn’t have even had the power to protect it.

  17. Kevin,

    How is that different from me, my sister, my aunt, my best friend’s neighbor’s 2nd cousin’s dog’s shampooer (and all previous) making each making a copy of a page of a book, then having users stitch together a complete copy?

    Nick

  18. Real property is just land and stuff built on land. Tangible property is land and personal or chattel property, i.e., material things other than real property. “Real” has no metaphysical significance regardless of its etymology in the law. (My car is as real as my back yard.) Taking federalism seriously, had the Constitution not given the federal government control over patents and copyright, the states (sovereign entities that they were perceived to be) could have done so. The result would have been problematic, but there is nothing special or new about the state (however defined or delimited) creating property rights. (And water, in fact, is H2O.)

  19. kevin says,

    “On the other hand, the YouTube model is such that 22 different posters could put up one minute apiece of any particular sitcom, which users could then download and stitch together into an entire episode.”

    Aside from Nick’s poignent, reply…

    In what wacky alternate reality would such a scenario be plausible? Seriously…? Right, there’s going to be a mass YouTube conspiracy to flout CBS’s ownership of The Andy Griffith Show by, um, a group of posters each uploading a 1-minute clip of the show, which then allows other users to download each clip in sequential order, which they then must import into video editing software and painstakingly splice together to reproduce the original, knowing that no amount of expert video editing will ever get it back to its original quality.

    Or they could just set the Tivo to record it on TVLand.

  20. D.A. Ridgeley:

    I know you like to rely on the unfounded statements, but wouldn’t the Supreme Court have struck down the states if they tried to infringe on the First Amendment over some fake property that didn’t even exist?

  21. I know you like to rely on the unfounded statements, but wouldn’t the Supreme Court have struck down the states if they tried to infringe on the First Amendment over some fake property that didn’t even exist?

    Not until the First Amendment was held to apply to the states (Gitlow v. New York, 268 U.S. 652 (1925)).

  22. Given that the Supreme Court has traditionally afforded political speech more protection than other forms of speech

    Have they, really? Over here we have this 2 Live Crew thing, then over here we have campaign finance reform. Progressives told us that 2 Live Crew performances were important to protect because it would place judges in position to determine which speech was important and which was obscene– and hijinks would surely ensue. Fast forward fifteen or so years and progressives tell us how important it is to regulate political speech because campaigns are getting too negative and too influenced by money.

  23. Radley,
    I get your point about print and video and how its used, and agree that a substantial portion of what YouTube is all about would fall under use that in the print version, would be fair game. But to say that YouTube doesn’t (or didn’t) encourage the other sort of use is sort of disengenuous. YouTube became what it is in large part do to clips from comedy central. You used to be able to watch full episodes of South Park and The Daily Show. I remember what turned me on to YouTube was watching a compilation of all the Conan O’Brien- Walker Texas Ranger Clips. Now you can certainly make the argument that there is nothing wrong with that either, but its a different sort of argument.

  24. It’s only fake in your head, Lamar, or perhaps more accurately it is the “reality” of other sorts of property that is only in your head. Patent and copyright have historical roots in English law with the crown granting copy rights to publishers and letters patent for all sorts of monopolies. Oh sure, it was made up back then, too, but that’s not really the point. Law is a creature of the state and property is a creature of law.

  25. I would be surprised to learn that CBS had complained about this clip specifically; more likely Viacom made a blanket request that all CBS programming be taken down, and this was just a victim of the sweep.

  26. RE: “analysis, juxtaposition, criticism, or to make a political point”

    see: TVII/Network

    http://www.youtube.com/watch?v=KlhkTgIt8DQ

    is that kinda thing legal?

    or is a “two-fer”?

  27. All property rights may be defined by law, but not all are equally arbitrary. Tangible property rights can be derived from the natural acts of possession and defense of one’s possessions. “Intellectual property,” on the other hand, is just something “the law” pulled out of its ass.

    I’m not surprised, frankly, that patents and copyright were another venerable Stuart precedent the Federalists decided to resurrect. The national government eventually imported civil/administrative law, Walpolian finance, and Mansfieldian jurisprudence, among other things the Revolution thought it had killed off. Too bad we didn’t send some of our own Stuarts to the chopping block.

  28. Radley,

    I consider your stuff about as good as it gets among the Reason staff, but when, intrigued, I went along with the “Mencia steals jokes” suggestion, and I watched the clip, I was left unconvinced and disappointed.

    Comedy is like pop music or science. Polygenesis happens all the time in these sorts of endeavors, given the finite number of riffs involved. I suspect that Mencia, at the most, internalized Cosby (like Cosby internalized a few comedians in his day) to such a large extent that he can’t even begin to put a finger on how much the latter influenced him.

    And I offer this defense without even being that big fan of Mencia. I find him consistently one or two steps behind every other cutting edge comic.

  29. I understand the impulse to want to see the fatcats get the short end of the stick for a change but I don’t see how CBS’s actions are in any way wrong. They own the clips and they have the right to determine how the clips are used. You could argue that it doesn’t make sense for PR but if I am not mistaken, Property holders are required to actively protect their property or risk the dilution of their future claims.

    A friend of mine has produced a feature length film that will be distributed in a unique way using the internet. If users of YouTube were able to upload clips of his film it would destroy his efforts and deny him any profits that he may have coming. How is that fair?

    And how would a law that allows somebody to post a 5 minute clip from Andy Griffith on YouTube, protect a struggling filmmaker?

  30. Sorry that I am so late to the game.

    I watched the specific clip that Radley mentioned. In my mind that is clearly a fair use since the clip was being used to illustrate a political point. Note that I am one of the hard-core intellectual property is real property folks. However, I have always stated that rock-solid support for fair use is necessary for this to occur.

    In this case, youtube was just sued for a billion (that’s right billion) dollars. I imagine they are going to quickly respond to all requests to remove copyrighted content when the copyright holder requests.

  31. Note that it was viacom is specific that sued google for 1 billion dollars for copyright infringement against youtube.

    At this point, I lean towards google.

  32. In other news aide to Sen. Jim Webb gets a civics lesson about carrying unlicensed pistols and unlicensed ammunition in DC and into a federal building.

    According to the Webb office, it was just a mixup!

  33. Given Mencia’s history (which involves stealing over 13 minutes of material from George Lopez and ripping a joke directly off of a comic who had opened for him), I am less inclined to buy the polygenesis argument in this instnce.

  34. This is classic fair use: no profit to be gained, small portion excerpted, used for educational purposes, etc.

    – Josh

  35. Ridgely:

    Well, there is then the question of whether the law should properly reflect underlying moral truths [which opens the question of whether there are any valid underlying moral truths].

    In other words, it is quite possible that if I sit down right now and write a poem, it’s morally mine, and the law can either recognize my property right in the poem [and thus be legitimate] or can fail to recognize my property right in the poem [and thus be illegitimate].

    It is quite true that the enjoyment of a right in property would not be possible without the law. But it is also possible [personally, I think it’s very likely] that the law is merely recognizing property, and not creating it. Just law, at least.

  36. They talk about the Mencia thing on Adam Carolla a lot. There was more anger at first from the guest comedians, but now they’re chilling out. They seem to be reaching a consensus that much of their material is unavoidably close, and that pursuing Mencia – as guilty as everyone seems to think he is – will only invite more acrimony to everyone’s professional lives.

    I guess the way to go is to somehow tap into a bucket full of public domain humor like that Foxworthy guy did. His redneck jokes had only been around for 20 years when he started to make a living from them.

  37. Evan!, couldn’t you tell that I was channelling Motie Cathy Young? 🙂

    Kevin

  38. The right to own property is not a power specifically granted in the Constitution, probably because it was considered a fundamental right (don’t forget how property was intermingled with citizenship and voting at the time).

    Amendment V
    No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  39. From the Webb story: A congressional official briefed on the incident said Webb gave the gun to Thompson when the assistant drove him to an airport earlier in the day.

    So Congressman Webb was also “carrying unlicensed pistols and unlicensed ammunition in DC…”

    Hold your breath for the arrest.

  40. I thought the District’s ban on handguns was overturned by a Federal court. Doesn’t that mean that a non-felon can own them now?

    (OK, I guess any suspension of that law is on hold until all the appeals go through, but still.)

    If Webb was on the way to the Capitol, he might be protected by the Speech and Debate clause. Once he got there, I suppose he ought to have checked his shootin’ irons with somebody like the Capitol Police.

    Kevin

  41. Direct from Article I:
    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 would like for the copyright fanatics to tell me how incessant extentions that lead to 100+ year fall under limited. I would also like a justification for why copyright deserves a significantly longer protection than patents, which are physical inventions. If people invent* with the weaker patent protections, then why aren’t they sufficient for copyrights?

    *And boy howdy are the discoveries that are solely protected by patent law far more beneficial for the human race than the crap protected by copyright.

  42. So Congressman Webb was also “carrying unlicensed pistols and unlicensed ammunition in DC…”

    Hold your breath for the arrest.

    You can not conclude that from the statements in the article because Webb lives in VA and DC has no airports. A radio report this AM said Webb lives in Crystal City and was dropped off at Dulles ~26 miles west, still in VA.

    Can’t rule it out either.

    Kevin,

    If Webb was on the way to the Capitol, he might be protected by the Speech and Debate clause. Once he got there, I suppose he ought to have checked his shootin’ irons with somebody like the Capitol Police.

    We are talking about an assistant to Webb.

  43. Mo:

    I would happily concede that copyrights should expire at some point, but I have to wonder aloud why it would be important to anyone to see copyrights NOT be extended.

    And the only reason I can think of is “I want to sell shit with Mickey Mouse on it, so I can mooch off of the billions that have been spent to popularize that merchandizing icon.”

    It’s not like there are legions of college students out there swapping MP3’s of old Louis Armstrong recordings or Thomas Edison’s voice.

    I really don’t see why people can’t draw their own damn mouse and sell T-shirts with that figure on it.

  44. Actually, I believe one article noted that Webb has a special carry permit, and the problem here isn’t the gun itself, but the fact that the aide transported the gun.

    And that nicely encapsulates one reason why gun control is absurd. If Webb and his aide walk into the building at the same time, with Webb carrying the bag containing the gun, everything’s kosher, but if Webb spills coffee on himself and hands his bag to his aide for a moment, a crime has been committed. Stu-pid.

  45. Fluffy,

    The special carry permit is for the person, not the gun and it is good in VA and several other States, not including DC or MD. Other permits are ‘available’ there. My TN permit is good in VA and I can carry in more places in VA than TN (last I checked).

    Radley knows a lot more about the VA law than I do, so will defer to his comments if he gives them. On the radio they were saying that it is illegal to give your pistol to someone else in VA. I believe that is false (unless you give it to a felon).

    Anyway, if the aide had the handgun in the open in VA then he is fine without a license (as long as he can legally own a pistol) but if he conceals it he needs a concealed carry permit. He could “properly package” the weapon, locking it up out of his reach.

    As soon as he reaches the river, he is in violation of DC law if he does not have a DC permit. As soon as he entered the Russell Senate Office Building, he was in violation of federal law.

    I thought the issue of airport property was addressed by VA law a couple of years ago, where you can carry concealed on airport property as long as you do not enter the terminal.

  46. Mencia is notorious for the latter and has no respect among his peers.

    I imagine he also has no respect among his peers because he fails to be funny. I can’t watch the guy the length of a commercial without cringing at his lack of comedic timing.

  47. LarryA:

    Thanks! Glad you can read. Now since your such a Constitutional scholar, let’s look at the copyright clause that you think is so analogous to the Fifth Amendment:

    “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 in real property, no one shall take away that right without due process of law. In intellectual property, Congress is empowered to grant a limited monopoly if it so desires.

    I’m having a hard time seeing how those two concepts are equivalent. Think about it: your argument requires you to see the Fifth Amendment’s due process clause as on similar footing as something the body of the Constitution says Congress can do if it feels like it. In my opinion, the whole thing rests on poor legal analysis.

  48. Fluffy: Ever heard of Johnny Cash? The man wouldn’t have had a career if it weren’t for public domain songs. The more you keep extending copyright, the fewer artists, period.

  49. Maybe it is time for you to educate yourself about the DMCA and learn to stick up for your own rights.

    Google’s position is and always will be that it does not police copyright–either to the benefit of copyright holders or to the benefit of users. Google simply follows the DMCA.

    From the United States Code, Title 17, Chapter 5, Section 512(c), here’s how it works:

    [For reference, go to http://www.copyright.gov/title17/92chap5.html#5-9 and then scroll down to part (c), “Information Residing on Systems or Networks at Direction of Users”]

    Step 1. Pursuant to 17 USC 512(c)(1)(C), the copyright holder sends a notification of claimed infringement that complies with 17 USC 512(c)(3), i.e., it contains:

    (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

    (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

    (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

    (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

    (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    [See also http://youtube.com/t/terms, paragraph 5(D).]

    Step 2. Pursuant to 17 USC 512(c)(1)(C), the service provider (in this case Google/YouTube) removes the material that is alleged to violate copyright. This allows the service provider to claim it has no liability for the alleged violation.

    Usually, that is the end of it because the user does nothing more, probably the same thing you are going to do because you are either ignorant of your rights under copyright law or you do not have the cahones to stick up for your rights. The DMCA does provide however that there is a Step 3:

    Step 3. Pursuant to 17 USC 512(g)(3), the user (in this case you) sends the service provider (in this case YouTube) a counter notice that contains:

    (A) A physical or electronic signature of the subscriber.

    (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

    (C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

    (D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

    See also “Counter Notification” at http://www.google.com/dmca.html

    Step 4. Pursuant to 17 USC 512(g)(2)(B), the service provider notifies the copyright holder that it has received a counter notice.

    Step 5. Pursuant to 17 USC 512(g)(2)(C), the service provider restores the allegedly infringing material within 14 days UNLESS it receives a notice from the copyright holder that it “has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.”

    Step 6. Pursuant to 17 USC 512(g)(2), if the service provider (YouTube) fails to restore the material, it may become liable to the user (you) for improperly denying access to the material.

    So, if you want to stick up for your rights, send a counter notice to YouTube’s designated Copyright Agent: Heather Gillette, 1000 Cherry Ave., Second Floor, San Bruno, CA 94066, email: copyright@youtube.com, fax: 650-872-8513 (see http://youtube.com/t/terms, paragraph 5(D))

    Then if the video is not restored in 14 days, file suit against both CBS and YouTube.

  50. I think the problem here is the artificial distinction between tangible and intellectual property. If I write and record a song, I own the rights, including the distribution rights. If someone distributes my song without my permission, I’ve lost the rights of distribution as well as the potential for profits to that song. To say I have no rights to my property just because an individual can copy and distribute it undermines the spirit and intent of copyright law. To justify it because it may enlighten or educate the public is immaterial. What the anarchist wing of the libertarian gang wants is closer to communism than capitalism.

  51. Fluffy,
    Gee, because Disney has never used anything in the public domain to make a story. Why can’t Disney writers come up with their own damn stories?

  52. The right to own property is not a power specifically granted in the Constitution,

    Nor need it be. The Constitution is a document that specifically grants powers to government, subject to certain limitations on those granted powers.

    The Fifth Amendment sets forth one of those limitations on government power, and recognizes/assumes a pre-existing right to property.

  53. LarryA,

    I have been informed that we should be calling what Webb’s assistant was carrying an undocumented pistol and undocumented ammuntition.

  54. Thanks! Glad you can read. Now since your such a Constitutional scholar, let’s look at the copyright clause that you think is so analogous to the Fifth Amendment:

    I went back and read my post most carefully. I didn’t see any reference in it to copyright, analogous or otherwise.

    So in real property, no one shall take away that right without due process of law. In intellectual property, Congress is empowered to grant a limited monopoly if it so desires.

    There isn’t anything in the Fifth Amendment limiting the “property” or “personal property” to “real” property. (I’m presuming you are using the adjective “real” to represent “property that is not intellectual property” instead of its standard meaning of real estate.) I note that there is nothing in the Fifth Amendment excluding what you call “intellectual property.” Therefore if the government wanted to use one of my copyrighted novels for some purpose they would either have to pay for it like everyone else, work out a volume deal, or take it by due process of law and compensate me.

    The example is not academic. See the laws preventing convicted criminals from profiting from works written about their crimes.

    Think about it: your argument requires you to see the Fifth Amendment’s due process clause as on similar footing as something the body of the Constitution says Congress can do if it feels like it.

    See above; I made no argument.

    What I do argue, however, is that they are not analogous or equivalent; instead one leads to the other. According to Article I Congress can establish rules defining the rights of authors and inventors to the exclusive use of their works. Such a copyright becomes the property of the person or institution holding it. It can be sold, given away, voided, inherited, or fought over in court. Once the rules copyright rules are established, the Fifth Amendment protects that type of property the same way it does any other form of property.

    And boy howdy are the discoveries that are solely protected by patent law far more beneficial for the human race than the crap protected by copyright.

    Ginsu knives are more beneficial than Reason Magazine? Rather broad brush there.

  55. undocumented pistol and undocumented ammuntition

    [grin]

    Looks like there could be a machine gun charge

    As I recall from the mid 1980s Sen. Ted Kennedy’s bodyguard was arrested for carrying two submachineguns and a handgun into the same building. The matter got quietly dropped.

  56. LarryA,

    I see now that your argument is only that once Congress grants a property interest that the Fifth Amendment protects that property interest. That has been settled law for hundreds of years, and nobody disputes that (the Fifth Amendment doesn’t exclude entitlement to welfare checks either). I apologize for assuming a context.

    RC Dean:

    “The right to own property is not a power specifically granted in the Constitution,”

    “Nor need it be.”

    Um, which is why I think it isn’t. They don’t need property to be granted specifically because it is a given, while they do have to delineate permission to make value out of IP because it is NOT a fundamental entitlement. So while the Fifth assumes a pre-existing right to property, Article I does not assume that IP is property, and does NOT mandate any protection.

  57. “I posted a YouTube clip taken from The Andy Griffith Show. It was a charming bit where Sheriff Taylor explains to Opie that it’s illegal to eavesdrop on conversations between criminal defendants and their lawyers, and how in a free society any conviction resulting from such tactics does more harm than good….

    “…Its presence on YouTube wasn’t going to prevent anyone who would have otherwise bought the DVD of the show from doing so. Rather, it was posted to make a political point; either to allude to a time when civil liberties were more than mere formalities, or to poke fun of those naive enough to actually believe what Andy Taylor was lecturing Opie about.”

    But you just made the same point right here without showing us the clip. In fact, your synopsis probably made that point better than the original clip. There may well be justific’n for allowing people to show the clip without permission, but that’s not it.

  58. “This is classic fair use: no profit to be gained, small portion excerpted, used for educational purposes, etc.”

    If a clip is on YouTube, there is profit to be gained by Youtube which benifits through its income generators that depend on material.

    And even if you accept the argument that no profit will be gained, the owner of the property is still damaged because it inveritably diminishes the value of the property owned.

    I like the term “Anarchists wing of the Libertarian Gang” used by ED above since it comes closest to explaining this ongoing insistence by self proclaimed Libertarians that private property, the fundamental element of a Capitalist system be dismantled. I’ve been at a loss over the past years trying to understand how this all fits into the philosophy.

  59. “But you just made the same point right here without showing us the clip. In fact, your synopsis probably made that point better than the original clip.”

    Not a chance. Showing a black & white TV clip (picture’s worth 1000 words) with a sensible and trusted voice on the issue has much more impact in highlighting how much our society has changed over the years.

  60. eb:

    “And even if you accept the argument that no profit will be gained, the owner of the property is still damaged because it inveritably diminishes the value of the property owned.”

    Assuming “inveritably” is a word, it would mean that the property is not truly being damaged. Did you mean to say this? The good news is that under a more open copyright regime, more information gets to more people. That includes not only political statements on TV, but also dictionary entries, spellings and word definitions!

    And History books too!! For instance, did you know that capitalism existed prior to copyright protection? I have to wonder, how can IP be a “fundamental element” in capitalism if capitalism existed before it?

    You are at a loss because you buy into the idea that people own everything that comes out of their minds, and that we each have the inalienable right to control whether you repeat my expressions. Instead of calling libertarians silly names, why not take a look into the pros and cons of whether IP should be treated like land?

  61. It is late in the thread, but this item has me thinking:

    maybe the DMCA in this situation incentives people to add commentary to the video. A narrator could have been shown prior to the video saying:

    “Remember a time when civil liberties were more than mere formalities.”

    the same narrator could come back at the end of the clip and conclude with:

    “Of course, those old enough to remember those times are probably not naive enough to actually believe what Andy Taylor was lecturing Opie about.”

    That would make a better video, and it would be harder to shut down. (See http://www.afterdawn.com/news/archive/9023.cfm). Its win-win. a thought anyway.

  62. It could make a better video, but then it could also look like you edited the thing, or jimmied with it somehow. Still, good idea to put the commentary inside the material. I tend to think written commentary carries more weight. Yeah, it’s irrational, but I think it’s true.

    Here’s a dissimilar thought: Reading through H&R’s topics, I see that there is a stink brewing that we are not teaching our kids civics lessons and how to be good citizens. At the same time, our copyright laws require removal of many such lessons like the Andy Griffith clip. It seems odd to radically change copyright (which is what the DMCA did) and alter how we teach our children to fill in the void left by dimishing availability of free information.

    I think Giuliani said it best when talking about Sarbanes-Oxley: “You go through a period of time in which we have these things happen where people commit crimes [or illegal activities], which is kind of a part of human nature. Some people just commit crimes [or illegal activity]. Then we over regulate, then we have to go back and correct the over regulation.”

  63. “Not a chance. Showing a black & white TV clip (picture’s worth 1000 words) with a sensible and trusted voice on the issue has much more impact in highlighting how much our society has changed over the years.”

    I disagree. Your writing the above has much more impact than having to wade thru 5 mins. of audio-visual that I’m sure presents a lot of material besides the above, and it took me just a few seconds to read what you wrote. You put the emphasis exactly where you want it, which is probably not the emphasis the makers of the original material had in mind. I could easily imagine a lot of people coming across the clip and viewing it without getting your point, but I can’t imagine anyone who understands English reading your second sentence above and missing your point. However, like me, they might disagree with it.

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