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The Ethics of Private Property: Google & the Courts

 
 
joefromchicago
 
  1  
Reply Fri 7 Oct, 2005 08:23 am
Foxfyre wrote:
Then you haven't read the thread carefully.

WARNING: anyone reading this thread carefully risks having his/her head explode.

http://students.washington.edu/rexm/exploding-head1.gif
0 Replies
 
Thomas
 
  1  
Reply Sat 8 Oct, 2005 04:16 am
Foxfyre wrote:
There is a huge difference between letting principle take over the letter of the law and principle preceding law. I said the latter not the former. All law should reflect our principles. Our principles should not be determined by the law. Do you see the difference?

One principle I strongly advocate is that the people, through their legally elected representatives, should determine what the law should be. The function of the courts is to be sure that the letter and intent of the law is followed. Their function is not to write the law as the judge thinks it should be.

Is it your opinion, then, that the current Copyright Act is badly written, and that Congress should pass a better, more principled one?

Foxfyre wrote:
If we encourage judges to write their own laws, then what recourse do we have when SCOTUS does that?

In your jurisprudence, what happens when the statute itself leaves the key determination for the court to figure out -- as in our case, where the key determination is what constitutes fair use? How does a court follow the law when the law itself says it will follow the court, at least for the most part?
0 Replies
 
Foxfyre
 
  1  
Reply Sat 8 Oct, 2005 07:48 am
Thomas wrote:
Foxfyre wrote:
There is a huge difference between letting principle take over the letter of the law and principle preceding law. I said the latter not the former. All law should reflect our principles. Our principles should not be determined by the law. Do you see the difference?

One principle I strongly advocate is that the people, through their legally elected representatives, should determine what the law should be. The function of the courts is to be sure that the letter and intent of the law is followed. Their function is not to write the law as the judge thinks it should be.

Is it your opinion, then, that the current Copyright Act is badly written, and that Congress should pass a better, more principled one?

I think copyright law is based on the principle of the owners' right to control their property. It is (or should be) illegal to take other's property for one's own benefit. This is the principle I see at play here. If the Copyright Act covers it, then fine. Let's hope the judge(s) see that. If it does not, then the judge can still rule on the higher principle of rights of owners to their own property.

Foxfyre wrote:
If we encourage judges to write their own laws, then what recourse do we have when SCOTUS does that?

In your jurisprudence, what happens when the statute itself leaves the key determination for the court to figure out -- as in our case, where the key determination is what constitutes fair use? How does a court follow the law when the law itself says it will follow the court, at least for the most part?


I think judges often have to interpret law, but the judge should always stay within the letter and intent of the law as written. For instance a judge who decides a states' marriage law is not what it should be, and 'rewrites' it for the benefit of same sex couples, is making new law. Whatever one's opinion about same sex marriage, I think most reasonable people think it is the legislative branch that should rewrite laws that need to be rewritten or that the people should similarly amend their constitution(s) and that it should not be the prerogative of the judiciary to do this.

ATTENTION EVERYBODY! DISCLAIMER: I used the same sex couple issue as an example only. I DO NOT wish to discuss same sex marriage in this thread and will not do so.
0 Replies
 
ehBeth
 
  1  
Reply Wed 26 Oct, 2005 10:38 am
Everyone's doin' it ...

Forbes link

Quote:
Gates' Microsoft Throws The Book (Search) At Google
Chris Noon, 10.26.05, 8:44 AM ET

The wisdom of the Hellenic people--set out in myriad books and scrolls--was aggressively documented by Ptolemy III of Egypt when creating the gargantuan marble athenaeum we know as the Library of Alexandria. Visitors to Alexandria were forced to surrender all literature in their possession, which was then cribbed by horny-handed official scribes, helping to create acres of numbered and titled manuscripts.


<snip>

Quote:
Microsoft has confirmed it will enter the business of offering online searches of books and other writings, but its approach aims to avoid the legal tussles met by its hefty Internet rival. The software leviathan thinks it will sidestep copyright issues by initially focusing mainly on books, academic materials and other publications in the public domain.


~~~~~~~~~~~

RedHerring link

Quote:
Like Yahoo, the Redmond giant takes a less confrontational approach than Google to acquiring copyrighted content.
October 26, 2005

Microsoft said it would join Google and Yahoo in digitizing millions of books and making that content available for online access and search.

But the Redmond software giant will follow Yahoo's business model of giving copyright content owners the right to include or exempt their material.

Microsoft announced late Tuesday that it is joining the Open Content Alliance, the same consortium of universities and libraries that Yahoo has invested in to help sort out a system to solve the attendant copyright and payment issues (see TechSpin: Yahoo Scans Books).

0 Replies
 
Foxfyre
 
  1  
Reply Wed 26 Oct, 2005 12:51 pm
I have no problem with material in the public domain being put out there, and no problem with any of these services contacting the copywrite holder for permission to include their stuff. If permission is not given, then it should be illegal to post it. The writer and publisher of a best seller are entitled to their sales and royalties which could be seriously compromised if the material is posted on the internet and is available for free.
0 Replies
 
ehBeth
 
  1  
Reply Wed 26 Oct, 2005 12:56 pm
"initially focusing"

~~~~~~~

It's the wave of the past.
0 Replies
 
Craven de Kere
 
  1  
Reply Wed 26 Oct, 2005 07:54 pm
ehBeth wrote:
Everyone's doin' it ...


Depends on what "it" is. The example of the content alliance you mention isn't scanning copyrighted books without permission.

Scanning books themselves or making them available online was done before Google (e.g. Amazon, Project gutenberg..). The Google element was doing it with copyrighted books without permission.


http://www.opencontentalliance.org/participate.html

Quote:
"initially focusing"


The scope of the project may change, but the principles the Open Content Alliance laid out seem to preclude Google's approach.

http://www.opencontentalliance.org/participate.html

Some key differences are:

1) A Non-profit (the Internet Archive) will run the show.
2) The content is going to be more open than with Google. Think wikipedia or dmoz vs Google. Google likes to make things available to end users readily but not to people who may compete with them.

This project will be more open ala dmoz or wikipedia. This means that there will be more ways that the content can be useful to the end user. An example of this is how answers.com uses wikipedia articles.

Google's way meant only they profited.

3) "Respect" authors and copyright holders. "Respect" is as respect does and if Google wins this group will likely use the precedent to support similar actions. But the group's principles are initially more "respectful" of copyright.
0 Replies
 
ehBeth
 
  1  
Reply Wed 26 Oct, 2005 07:59 pm
Craven de Kere wrote:
ehBeth wrote:
Everyone's doin' it ...


Depends on what "it" is.


it's from a song. an old one. the big whack of hits today on the various angles being used made me think of the song ...

The historical perspective the Forbes article added was interesting. As that other old song goes "everything old is new again".
0 Replies
 
Debra Law
 
  1  
Reply Thu 27 Oct, 2005 03:31 am
Foxfyre wrote:
I think copyright law is based on the principle of the owners' right to control their property. It is (or should be) illegal to take other's property for one's own benefit. This is the principle I see at play here. If the Copyright Act covers it, then fine. Let's hope the judge(s) see that. If it does not, then the judge can still rule on the higher principle of rights of owners to their own property.


You are wrong. Copyright law is not based on "the owners' right to control their property." Copyright law is based on Article I, Sec. 8, clause 8 of the United States Constitution. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991). The Supreme Court wrote:

Quote:
The primary objective of copyright is not to reward the labor of authors but "[to] promote the Progress of Science and the useful Arts." Article I, Sec. 8, clause 8 [U.S. Constitution].


17 U.S.C. Section 106 grants copyright owners a bundle of rights (reproduction, adaptation, publication, performance, and display) subject to various limitations, qualifications, or exemptions set forth in sections 107 through 118.

Federal copyright laws protect copyright owners from unlawful copyright infringements. When a case or controversy under the copyright laws is brought to court, it's the court's duty to apply the law to the facts presented. The plaintiff has the burden of proving ownership of a copyright and the alleged infringement; the defendant has the burden of proving that his/her use falls within a statutory exemption.

According to what you just said, if copyright laws make it "illegal to take other's property for one's own benefit," this is FINE. However, if the copyright laws do not make it "illegal to take other's property for one's own benefit," then you want the judges to ignore the copyright laws, engage in judicial activism, and rule "on the higher principle of rights of owners to their own property."

If the court, upon hearing all the facts in evidence and all legal arguments from both sides, finds that Google's alleged infringement of the complaining copyright owners' interests via its Library Program falls within a statutory exemption established by CONGRESS--are you saying that the court should disregard that finding, engage in judicial activism, and rule on some "higher principle?" Should the Court "legislate" from the bench and grant ABSOLUTE rights to copyright owners rather than interpret and apply the law enacted by Congress that merely grants LIMITED rights?

Are you arguing that federal laws (e.g., fair use, etc.) that LIMIT a copyright owner's rights are UNCONSTITUTIONAL? How so? It's not enough that you espouse "higher principles." A judge can't ignore the law simply because Foxfyre argues that "higher principles" require the judge to do so. You have to provide a LEGITIMATE argument: E.g., 17 U.S.C. Sections 107-118 are unconstitutional on their face or as applied in violation of the Due Process Clause of the Fifth Amendment because . . . .????

I am absolutely against unconstitutional laws that arbitrarily deprive any person of his/her life, liberty or property. Even so, I cannot discern any basis for finding that our copyright laws are unconstitutional. Our courts must apply the copyright laws as written. Our courts cannot ignore a constitutional law in order to "rule on the higher principle" as you suggest.

I thought you were against judicial activism, but this is exactly what you're advocating when you say the judge may ignore copyright laws and rule on the "higher principle."

Foxfyre wrote:
I think judges often have to interpret law, but the judge should always stay within the letter and intent of the law as written. For instance a judge who decides a states' marriage law is not what it should be, and 'rewrites' it for the benefit of same sex couples, is making new law. Whatever one's opinion about same sex marriage, I think most reasonable people think it is the legislative branch that should rewrite laws that need to be rewritten or that the people should similarly amend their constitution(s) and that it should not be the prerogative of the judiciary to do this.


A judge does not decide to rewrite laws. When the parties to a case or controversy arising under the CONSTITUTION of the United States invoke the power of the courts to resolve the issue, the court MUST decide the issue. That's not judicial activism, that's the legitimate role of the judiciary: to decide cases and controversies.

In same-sex marriage cases, you want the courts to ignore the constitutional issues (the "higher principles" of due process and equal protection) and leave the matter to the legislative branches. It doesn't matter to you whether same-sex marriage laws are constitutional or unconstitutional. You don't want the courts to rule on the issue, period.

In intellectual property cases, you want the courts to ignore the legislative enactments and rule on "the higher principle" of rights of owners--even though (on other issues) you claim this should not be the prerogative of the judiciary to do this.

In the Kelo v. New London case, the Supreme Court did NOT ignore the constitutional issue. The state legislature passed a law that allowed the municipality to take private property for economic development. The Court ruled economic development was a permissible "public use" required by the Fifth Amendment's takings clause. ACCORDINGLY, the state law at issue did NOT violate the Constitution. But, the Court said you were not without recourse. You could petition your state legislatures to rewrite the laws to prohibit takings for economic development.

Isn't this what you want? I'll use your words:

"Whatever one's opinion about same sex marriage, I think most reasonable people think it is the legislative branch that should rewrite laws that need to be rewritten or that the people should similarly amend their constitution(s) and that it should not be the prerogative of the judiciary to do this."

LIKEWISE, the Supreme Court ruled that the state law was not unconstitutional. Therefore, whatever one's opinion about taking private property for economic development, I think most reasonable people (the JUSTICES on the Supreme Court included) think it is the legislative branch that should rewrite laws that need to be rewritten or that the people should similarly amend their constitution(s) to prohibit takings for economic development and that should not be the perogative of the judiciary to do this.

The only conclusion that can be made upon evaluating your various positions is that you're RESULT oriented. You're upset when the courts rule in favor of homosexuals on "higher principles" (constitutional rights of due process and equal protection) because you are against homosexuality and want to enforce state laws enacted by the LEGISLATURE that oppress homosexuals. You're upset when the Supreme Court upholds LEGISLATIVE enactments that allow states to take private property for economic development when you don't think economic development is a proper public use. You're upset with federal LEGISLATIVE enactments, e.g. copyright laws, if these laws do not protect copyright owners the way you think they ought to be protected and believe the Courts should ignore those laws and rule based on "higher principles."

Your complaints have nothing to do with alleged "judicial activism." You have proven that you have no problem with the courts engaging in judicial activism if the courts reach the outcome you desire in pursuit of the "higher principles" you ascribe to. You want the courts to leave unconstitutional statutes alone if you agree with those unconstitutional statutes; and you want the courts to overturn constitutional statutes if you disagree with constitutional statutes. If you agree with the Court, then fine. If you don't agree with the Court, then the court did something wrong--probably enaged in judicial activism--according to you.
0 Replies
 
Thomas
 
  1  
Reply Thu 27 Oct, 2005 04:18 am
Debra_Law wrote:
Foxfyre wrote:
I think copyright law is based on the principle of the owners' right to control their property. It is (or should be) illegal to take other's property for one's own benefit. This is the principle I see at play here. If the Copyright Act covers it, then fine. Let's hope the judge(s) see that. If it does not, then the judge can still rule on the higher principle of rights of owners to their own property.


You are wrong. Copyright law is not based on "the owners' right to control their property." Copyright law is based on Article I, Sec. 8, clause 8 of the United States Constitution. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991). The Supreme Court wrote:

Quote:
The primary objective of copyright is not to reward the labor of authors but "[to] promote the Progress of Science and the useful Arts." Article I, Sec. 8, clause 8 [U.S. Constitution].

And, Foxfyre, lest you interpret Debra's facts as examples of judicial activism by the Supreme Court, I recommend a very neat reference I just found webbed by the University of Chicago Press: The Founders' Constitution. This book walks through the constitution sentence by sentence, and provides primary documents illuminating each sentence's original understanding. The page on the copyright clause is here, and as you will see, it says the same as Debra just did. Whatever your intentions are, your posts in this thread are arguing for judicial activism, not against it.
0 Replies
 
Foxfyre
 
  1  
Reply Thu 27 Oct, 2005 04:33 am
Debra and Thomas, I won't argue the origins or original intent of copyright law as I am neither an attorney nor skilled in technical legaleze and not qualified to debate it. I am well versed in Lockean principles of property, however, and this is the principle I see at play here. Whatever the original purpose of copyright law might have been, I still think the net effect is to protect the rights of the owners of literary properties and their financial interest in it.

I therefore reject the concept that I am arguing 'judicial activism'. I may be approaching it from the wrong angle, but I am approaching it from a solid principle that hopefully a good lawyer would find good angles from which to defend it.
0 Replies
 
Thomas
 
  1  
Reply Thu 27 Oct, 2005 04:53 am
Foxfyre wrote:
Debra and Thomas, I won't argue the origins or original intent of copyright law as I am neither an attorney nor skilled in technical legaleze and not qualified to debate it.

Then maybe you want to acquire some skill and qualification before you articulate strong opinions about what the courts ought to enforce as law.

Foxfyre wrote:
I am well versed in Lockean principles of property, however, and this is the principle I see at play here. Whatever the original purpose of copyright law might have been, I still think the net effect is to protect the rights of the owners of literary properties and their financial interest in it.

However commendable this may be, Locke's Treatise on Civil Government was never the law of the land. The constitution and the copyright act were, and are. As a consequence, any court enforcing Locke instead of the law would engage in legal activism. To make the courts enforce Locke, you must first petition your legislature to make it enact his writings into law.
0 Replies
 
Foxfyre
 
  1  
Reply Thu 27 Oct, 2005 05:41 am
Thomas wrote:
Foxfyre wrote:
Debra and Thomas, I won't argue the origins or original intent of copyright law as I am neither an attorney nor skilled in technical legaleze and not qualified to debate it.

Then maybe you want to acquire some skill and qualification before you articulate strong opinions about what the courts ought to enforce as law.

And maybe you should look at my entire point instead of picking one phrase that you can attack. I am now working with a publisher on a work I have been years in the making and hope to have it in print within a year. I hope to gain some profit from my labor on this work, and I am looking to the copyright law to ensure that I will receive it. I will not want my work to be posted on the internet by Google or anybody else. If you tell me that the publications objecting to their creative works being posted on the internet without their permission are not using the copyright law as their right to object, then I will tell you that you are wrong.

Foxfyre wrote:
I am well versed in Lockean principles of property, however, and this is the principle I see at play here. Whatever the original purpose of copyright law might have been, I still think the net effect is to protect the rights of the owners of literary properties and their financial interest in it.

However commendable this may be, Locke's Treatise on Civil Government was never the law of the land. The constitution and the copyright act were, and are. As a consequence, any court enforcing Locke instead of the law would engage in legal activism. To make the courts enforce Locke, you must first petition your legislature to make it enact his writings into law.


I respectfully disagree. Lockean principles are not law, but they do form the basis of the Constitutional law and many secondary laws protecting private property. Locke rightfully saw that property rights are the single most essential element in limiting the powers of government. In my opinion, judges who use different principles to rule on matters of private property, such as in Kelo vs New London, are the ones engaged in judicial activism. Likewise any judge who rules that Google can post whatever they please without first obtaining permission from the owners of the intellectual property will be engaging in judicial activism.
0 Replies
 
Debra Law
 
  1  
Reply Thu 27 Oct, 2005 06:04 am
Foxfyre wrote:
Debra and Thomas, I won't argue the origins or original intent of copyright law as I am neither an attorney nor skilled in technical legaleze and not qualified to debate it. I am well versed in Lockean principles of property, however, and this is the principle I see at play here. Whatever the original purpose of copyright law might have been, I still think the net effect is to protect the rights of the owners of literary properties and their financial interest in it.

I therefore reject the concept that I am arguing 'judicial activism'. I may be approaching it from the wrong angle, but I am approaching it from a solid principle that hopefully a good lawyer would find good angles from which to defend it.


Federal copyright laws protect copyright owners from unlawful copyright infringements. 17 U.S.C. Section 106 grants copyright owners a bundle of rights (reproduction, adaptation, publication, performance, and display) subject to various limitations, qualifications, or exemptions set forth in sections 107 through 118.

According to what you just said, if copyright laws make it "illegal to take other's property for one's own benefit," this is FINE. However, if the copyright laws do not make it "illegal to take other's property for one's own benefit," then you want the judges to ignore the copyright laws, engage in judicial activism, and rule "on the higher principle of rights of owners to their own property."

Deny it all you want, but you are advocating judicial activism.
0 Replies
 
Thomas
 
  1  
Reply Thu 27 Oct, 2005 06:20 am
Foxfyre, do you know how rare it is that Debra and I agree on a point of legal philosophy? Couldn't you consider, just consider, that our agreement on this point may mean something?

Foxfyre wrote:
If you tell me that the publications objecting to their creative works being posted on the internet without their permission are not using the copyright law as their right to object, then I will tell you that you are wrong.

I am not telling you that they are not using copyright law. I am telling you that maybe they are using it incorrectly -- and that a court wouldn't necessarily engage in judicial activism if it eliminated the "maybe".

Foxfyre wrote:
Locke rightfully saw that property rights are the single most essential element in limiting the powers of government.

... but Locke did not argue that everything ought to be private property. On the contrary, he did argue against property rights in some things such as unimproved land. As you could read up in my earlier reference to relevant primary sources, none of the documents leading up to the constitution argues that property rights in ideas are a natural right. They all argue that they are prudent government polic, consistent with authors' interests and the public good, but nothing more. I would be surprised if you could show me a Locke quote where he argues that intellectual property is a natural right as property in, say, houses.

Foxfyre wrote:
In my opinion, judges who use different principles to rule on matters of private property, such as in Kelo vs New London, are the ones engaged in judicial activism. Likewise any judge who rules that Google can post whatever they please without first obtaining permission from the owners of the intellectual property will be engaging in judicial activism.

1) There is no "likewise" at all connecting google with Kelo. 2) No judge ever ruled, and ever will rule, that Google can post whatever they please. Even Google doesn't say they can do that, nor does it show any intent of doing that.
0 Replies
 
Foxfyre
 
  1  
Reply Thu 27 Oct, 2005 06:39 am
Thomas: from the opening post that started this thread:

Quote:
. . . .Consider the ongoing battle between Google and the U.S. publishing industry over whether Google can, in the name of making searchable information available to the public, ignore copyright law and make an author's work available through its search engine, regardless of the author's wishes and without paying royalties for doing so.


This is the part that I am debating. That you and Debra agree on the fine ponts of the origins and content of the Copyright Law is wonderful and I commend you. I have already admitted I have no expertise to join in that discussion and, frankly, I am not interested in doing so if I had that expertise. That also is not at all what I have been arguing. Now you can nitpick the words I use and make the discussion about my incompetence. Or we can discuss the issue of principles of property that was the intent of this thread.

How do you know that a judge will not rule in favor of Google on this issue? Do you have some clairvoyant abilities that the rest of us lack?

I will accept that you see no parallel between Kelo and the current Google case, but I do see a parallel of the principles involved.

Locke taught that individual property, along with life and liberty, was a natural right. The purpose of government, according to Locke, is the preservation of natural rights. It follows that since the ownership of property is a natural right, the state, in the taking of it through taxation without the consent of those taxed, does so by breaching one of the three fundamental rights: the right to life, the right to liberty, and the right to property.

There was no copyright law in Locke's time. But would he see copyright law as pertinent to the principle of the natural right to property? I definitely believe he would.
0 Replies
 
Thomas
 
  1  
Reply Thu 27 Oct, 2005 07:02 am
Foxfyre wrote:
How do you know that a judge will not rule in favor of Google on this issue? Do you have some clairvoyant abilities that the rest of us lack?

I don't. But your "rule in favor of Google on this issue" is not the same as your earlier "rules that Google can post whatever they please without first obtaining permission from the owners", which is what I was responding to.
0 Replies
 
Foxfyre
 
  1  
Reply Thu 27 Oct, 2005 07:03 am
Debra wrote
Quote:
According to what you just said, if copyright laws make it "illegal to take other's property for one's own benefit," this is FINE.


???? What do you mean? Do you think that copyright laws should make it legal to take other's property for one's own benefit?
0 Replies
 
Foxfyre
 
  1  
Reply Thu 27 Oct, 2005 07:26 am
Thomas wrote:
Foxfyre wrote:
How do you know that a judge will not rule in favor of Google on this issue? Do you have some clairvoyant abilities that the rest of us lack?

I don't. But your "rule in favor of Google on this issue" is not the same as your earlier "rules that Google can post whatever they please without first obtaining permission from the owners", which is what I was responding to.


I am not sure what you are saying here either, so let me restate my position on this.

Google (or anybody else) should be able to post anything that is in the public domain. I believe the copyright laws do not protect creative works in perpetuity but such works will eventually enter the public domain.

While the work is still protected by copyright law, however, Google should not be able to post the work without first obtaining the express permission of the author or the publisher that owns the copyright. I believe by virtue of the copyright law, intellectual property is essentially treated the same, or should be treated the same, as real property so far as control and benefit to the owner is concerned.

I believe any judge who ruled that Google should be able to post whatever it wishes without first obtaining permission, and it would be incumbant upon the property owner to then demand remove the posting, would be infringing on the principle of private ownership and that would be judicial activism.

If I stated any part of this in a way to imply something different, then I inadvertently posted in error.

When a trespasser, without invitation, sets up camp on my private property, he is trespassing whether or not I know he is there. He doesn't become a trespasser at such time as I notice him and demand he vacate the premises. For Google to presume it sufficient that they post first and the property owner complain after the fact is not good enough. Damage will already have been done.
0 Replies
 
Debra Law
 
  1  
Reply Fri 28 Oct, 2005 02:35 pm
Foxfyre wrote:
Locke rightfully saw that property rights are the single most essential element in limiting the powers of government. In my opinion, judges who use different principles to rule on matters of private property, such as in Kelo vs New London, are the ones engaged in judicial activism. Likewise any judge who rules that Google can post whatever they please without first obtaining permission from the owners of the intellectual property will be engaging in judicial activism.


You are wrong, Foxfyre. John Locke believed that property ought to be used for the common good of all the people. Therefore, the political power of the state must be used to regulate property rights for the common good.

The problem, Foxfyre, is that you have taken your very limited, skewed, and incorrect knowledge of John Locke's views and transformed those views into something unrecognizable to justify your own self-serving views with respect to the "higher principles" of property ownership. Then you distort the concept of "judicial activism" to add insult to injury.

Nature, ungoverned by any social compact among the people, produces the "survival of the fittest," wherein the strong are able to reign terror over the weak. The strong have the ability through sheer force and violence to kill the weak, enslave the weak, and take whatever they want from the weak. In forming a social compact for the common good, the people agree that their condition in the state of nature (where the strong survive and the weak perish) is UNACCEPTABLE.

The weak and the strong have equal rights to life, liberty, and the pursuit of happiness, but without entering a social compact for the common good, the weak are unable to secure their rights against the transgressions of the strong. There are no police, prosecutors or judges in the state of nature and an individual's ability to protect his own life, liberty, or property is dependent upon one's own strength.

Locke has never advocated absolute ownership of property. If, through your own labor, you pick more berries than you can possibly eat and the excess berries are wasted, you have committed a transgression against the common good. People enter into the social compact for the common good: LEGITIMATE civil government is instituted by the explicit consent of those governed. The people delegate powers to the government to regulate property rights for the common good and to secure their lives and liberty from those who would otherwise use strength, violence, and force to deprive them of their lives and liberty.

In Locke's Second Treatise of Government, Locke defines the role of legitimate political power of the state over the people:

Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good. . . .

OUR social compact (wherein civil government was instituted by the explicit consent of those governed) is announced in the Declaration of Independence and is embodied in the Constitution for the United States of America.

The people DELEGATED political power to the federal government to regulate intellectual property for the common good:

Article I vests all legislative (LAW-MAKING) power for the United States in CONGRESS.

Article I, Section 8, Clause 8 vests Congress with the lawmaking 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."

http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

Congress exercised its Article I, Section 8, Clause 8, powers to enact copyright laws.

Our existing copyright laws are found in Title 17 of the United States Code.

17 U.S.C. Section 106 grants copyright owners a bundle of rights (reproduction, adaptation, publication, performance, and display) subject to various limitations, qualifications, or exemptions set forth in sections 107 through 118.

The JUDICIAL branch of government is responsible for settling disputes--cases and controversies arising under the Constitution and laws of the United States.

Accordingly, an author (a plaintiff) who alleges that he is the owner of a copyright protected by law under Title 17 U.S.C. Section 106 and who alleges an unlawful infringement of that copyright may prosecute a lawsuit against the alleged infringer (the defendant) in federal court for damages.

The defendant may defend the allegation of copyright infringement by answering the complaint and alleging that his use of the copyright materials is permitted by law. (Title 17 U.S.C. Sections 107 through 118.)

If the parties do not settle the lawsuit out of court, then it is the court's duty to decide the case or controvery arising under the laws of the United States. Both parties will have a fair and meaningful opportunity to present admissible evidence and argue the application of the law to the facts. Depending on the facts and circumstances of the case, the court might rule in favor of the copyright owner or the court might rule in favor of the alleged infringer.

The law, if you actually care to read the law, does not grant the copyright owner the absolute right to control every possible use of his/her copyright material.

The law, if you actually care to read the law, does not grant the alleged copyright infringer the right to use copyright material any way the alleged infringer pleases.

You have completely ignored copyright law as it exists (with protections to copyright owners and exceptions to those protections); you have ignored the TRUE historical basis for the regulation of property rights in general and copyrights in particular; and you have wildly implied (given the basis of your rant) that there can be only two possible outcomes of a copyright infringement case with respect to posting materials on the internet: 1) Absolute protection of the copyright owner or 2) no protection at all where the copyright infringer can post whatever they please online.

Contrary to your wild assertion, a ruling in favor of an alleged copyright infringer does NOT mean that the court ruled that the alleged infringer may use the material any way he/she/it pleases. You have completely distorted the law. If a court finds in favor of an alleged copyright infringer and allows an alleged copyright infringer to use a copyright owner's work in accordance with a statutory exception to the copyright owner's exclusivity, the court is NOT engaging in judicial activism--the court is following the law.

Accordingly, your announcement that "any judge who rules that Google can post whatever they please without first obtaining permission from the owners of the intellectual property will be engaging in judicial activism" is an emotional argument without any merit. No judge would ever rule that Google can post whatever it pleases. Google's postings must comply with the law.

Using the ABOVE as the foundation, I will again respond to your comments in a manner that you will hopefully understand this time:

Foxfyre wrote:
One of the reasons we need the most serious, competent, and Constitutional rights-minded justices on the Supreme Court is graphically illustrated in the Kelo vs New London case that allows the government to forcibly transfer private property to other private entities 'for the public good'


Your statement is based on the faulty conclusion that the COURT allows government to take private property. That's not true. It's the laws of your state that allow your state government to take private property. The only issue presented to the court was whether the state statute that allowed the City to take private property for economic development was constitutional or unconstitutional on its face or as applied.

In the Kelo case, the STATE legislature--the democratically elected branch of the state government--had previously passed a STATE law that defined economic development as a public use and permitted the City of New London to take private property for economic development. The United States Supreme Court ruled that economic development was a permissible public purpose under the takings clause of the Fifth Amendment applicable to the States via the Fourteenth Amendment. Therefore, the state law that allowed takings for economic development was CONSTITUTIONAL. The state law embodied a permissible choice within the political power of the STATE.

The Supreme Court does not have the power to set aside constitutional state laws merely because the Court might consider the choices within the political power of the state to be unwise. Perhaps individual members of Court, if they were lawmakers instead of judicial officers, would disagree with the wisdom of taking private property for economic development. However, it is not within the limited role of judges to substitute their judgment for the judgment of elected representatives acting within the scope of their legitimate police powers.

The political branches of government are accountable to the people. If the people do not want private property taken for economic development, they have the absolute right to petition their elected representatives in the LAW-MAKING branch to change the law. Your elected representatives are accountable to the people in the voting booth. If your elected representatives do not change the law, you have the right to elect new representatives who will. It is a POLICY choice whether or not economic development constitutes a public use that would justify taking private property and paying just compensation to the property owner.

Contrary to your assertion, it is NOT the Court that allows your state government to take private property for economic development--it's the PEOPLE of your state who allow this to happen and it's within the power of the PEOPLE of your state to forbid it by changing their state laws or by amending their state constitution. If your state laws allow the taking of private property for economic development, the state is exercising its legitimate powers with the CONSENT OF THE GOVERNED.

Foxfyre wrote:
Do you think Google should be able to link you to anything out there? Do you think it should be legal for somebody to post your own creative works that you had no intention of posting on the Internet?


Google may use the works of copyright owners in accordance with the copyright laws enacted by Congress. Even if I create original work protected by copyright laws and have no intention of posting my work on the internet, I cannot forbid the lawful uses of my work whether I like it or not.

Again, it is largely a political question with respect to what laws are necessary and proper to promote the arts and sciences and to what extent that I should have exclusive rights to my work enforceable by law. Again, if I am unhappy with Congress's policy choices reflected in our current laws, I may resort to the democratic political processes to change those policies through the enactment of new laws.


Foxfyre wrote:
I think copyright law is based on the principle of the owners' right to control their property. It is (or should be) illegal to take other's property for one's own benefit. This is the principle I see at play here. If the Copyright Act covers it, then fine. Let's hope the judge(s) see that. If it does not, then the judge can still rule on the higher principle of rights of owners to their own property.


You are announcing you are "fine" with federal copyright laws if those laws protect the copyright owner in the manner you desire.

You are announcing, if federal copyright laws do NOT protect the copyright owner in the manner you desire, then you want judge to ignore the law, substitute his own judgment for that of the legislature's judgment, and rule upon "higher principles." You are encouraging "judicial activism," which is the very evil you that you allegedly abhor.

Even though copyright laws may affect your interest in your own creative work, so long as copyright laws are rationally related to a legitimate government interest (promoting the arts and sciences), copyright laws are constitutional. So long as the copyright laws are constitutional, our courts do not have the power to ignore the law and substitute the (unelected) judgment of judges for the (elected) judgment of Congress.

The above may or may not make sense to you, but it depends on your willingness to learn if learned discourse is important to you. If you continue on your rant against the courts in its current form, then I will continue to believe that you throw around the phrase "judicial activism" as a result of willful ignorance or as a useful ploy (given the deragory connotations associated with the phrase when appealing to the emotions of useful idiots) in your campaign to smear the courts whenever you disagree with court rulings.
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