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Copyright and the First Amendment of the Constitution of the United States of America

Amendment [I] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This Amendment to the Constitution is arguably the most important for the preservation of freedom in the United States. It is the Amendment that allows people to criticize the government when it acts incorrectly. It is the Amendment that allows people to petition the government to change for a public need. It is the Amendment that allows free thought, for if speech be restricted, so too thought must be.

However, this inestimably important pillar of freedom is under attack from an insidious threat. As snakelike as the serpent in the Garden of Eden, copyright is enveloping the First Amendment in its ever constricting grasp.

"How can this be?" one might ask. "I am free to say whatever I please. How could copyright possibly have an effect on that?"

The answer is because of the Internet and digital communication systems.

In the old days, your speech was, as the record industry likes to put it, ephemeral. Your speech existed for the duration of the auditorily detectable sound waves your voice produced. It then continued to exist in the imperfect biological storage mechanisms of your listeners. It was often unreconizable to you when repeated to you after being washed through the chaotic psychies of those around you or those subsequently around them.

In this world of speech, you were free to sing a song or quote your favorite line from a movie. You could say to one of your friends, "Luke! I am your father. Search your feelings. You know it to be true!" and no one would hassle you in the slightest. Even in California, there are not that many lawyers, and there would be no way for them to prove you did such a thing as, technically speaking, publicly performing a copyrighted work.

I, however, just broke the law. Not only did I quote from a copyrighted film, but I also published it to a website. I also made criminals (contributory infringement) of every person who views this website, as your browser needs to copy the information in order to display it.

"But that is only for websites," you say.

Okay, now lets say you are having this conversation on an instant messenger (IM) program. That is a violation, too. The text is stored in memory and copies in memory are actionable according to Mai v. Peak (the same decision that applies to the browser above). Further, you or your conversation partner may or may not have enabled logging of messages creating yet another technically illegal copy.

So, you cannot quote movies. Maybe that seems like no big deal. As you may have expected, though, it gets worse.

Since the Copyright Act of 1976, which took effect in 1978, many large parts of the Berne Convention were incorporated into Title 17, the US code for copyright law. The most important of these for the current argument is automatic copyrights.

In the old days, when everybody had to walk 40 miles uphill just to get to school, copyrights were granted like patents. Copyrights had to be applied for, so copyrights were only granted to people who wanted to protect their work for some reason. There was a record of works and their copyrights. In the case of a dispute, it was easy to find out who wrote what (or at least who had the rights to what). Things were simpler. One could only sue another for copyright if the copyright was on file. ALL other information was in the Public Domain (in other words, not monopolized by a single individual or organization).

In 1978, that all changed. Copyright law acquired a provision where works would be automatically copyrighted when they were stored in a fixed medium. Quoting the 1976 Act:
A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title [17 USCS Sects. 101 et seq.] if a fixation of the work is being made simultaneously with its transmission.
This means, when works of creativity were recorded onto some medium or another, they were copyrighted automatically. No application, no fee, no hassles, right?

Well, not exactly. This also meant that anyone with a lawyer could arbitrarily claim that a set of information was "copyrighted" and sue. The merits of the case would have to be decided in court, and everyone knows how expensive that is. This put the balance of power heavily on the side of large publishing firms with lawyers on retainer. Since 1978, it has been possible to sue with little or no evidence and to force ordinary people, who of course have no lawyers on retainer, to pay out large settlements in cases that would likely be thrown out in court. This has been more than demonstrated lately by the RIAA's lawsuits against file sharers and many of the infamous DMCA takedown notices, as well as the infamous case of the "filesharing students" sued by the RIAA.

What does this mean for Free Speech? It means that something really serious has happened. On the Internet, all speech is cached by numerous servers as it travels. This means, every time you write, type, or even use voice over IP (VoIP) to make a phone call, over the Internet you are creating a copyrighted work. In addition, anytime you quote ANYthing that ANYbody else has said -- intentionally or unintentionally -- you are technically infringing on their copyrights.

"What about when I am not on the Internet?"

Well, the phone networks have all gone to packet switched networks as well. In the future, services like voice of IP will eclipse standard phone service entirely. So, everything you say and do will be recorded and searchable and, most importantly, suable. The extent the rich and powerful entities might take this to is up for speculation, but the implications for Free Speech are clear.

What does this mean for Free Speech? It means Free Speech is dead. It means the First Amendment has been successfully circumvented.

There are few people creative enough to create speech on a daily basis which would be provably different from the speech of those before them. Even those people would probably exhaust the possibilties before long or babble in an incessant stream of unintelligible syllables.

How can there be Free Speech or the Freedom to Speak if all speech is "owned" (or, more correctly, subject to a monopoly)? Current copyright law is a violation of everyone's rights. In this realm, the artists are a minority, and restrictions on speech affect them, too. One cannot create art if one is constantly researching whether or not one's art might potentially be under the perpetual monopoly of some other anywhere in the world.

The democratic way would be to protect EVERYone's rights. Do you believe in democracy?

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It was last updated on 2007:07:18.

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