[free-sklyarov] Fair use "rights"

Jay Allen sklyarov at openwire.com
Sun Aug 5 21:10:51 PDT 2001

At 09:03 PM 8/5/2001 -0600, Paul Gowder wrote:

>Have you ever heard the phrase "distinction without a difference?"  A 
>right is just something you can't be prosecuted for.

         And that's why I mentioned that the cause of the confusion may be 
semantic.  It is important to note, however, that language is the one 
science of law.  While, I may have heard of the phrase "distinction without 
a difference", I doubt that lawyers think that such a thing exists ("devil 
in the details")...

>By your argument, in the US, there's no "right" to free speech, it's just 
>that Congress isn't allowed to make any law against it.

         I think that you may think I'm thinking something that I'm not 
thinking. :-)

         I have no argument with fair use.  I have no argument with 
personal use.  They are both Very Good Things.  My only point was that we 
call it a right but it's not per se AFAIK.  I was looking for some piece of 
information which may make it a right.

         There is a right to free speech, because Congress is proscribed by 
the Constitution from passing any laws which infringe on it.  See Amendment 
1 of the Bill of Rights.  There is no similar proscription for fair use or 
personal use of copyrighted materials AFAIK.

         What's the difference between a right and "something you can't be 
prosecuted for"?  I'd say that it would be the ease with which it can 
change.  218 Representatives, 51 Senators and one President go for a hell 
of a lot less (as far as the MPAA/RIAA are concerned) than one 
Constitutional amendment.  :-)  Without a right--a Constitutional right, if 
you prefer-one little amendment to Title 17 and >poof<.

>Personally, BTW, I think fair use is constitutionally required, but that's 
>a very long argument that is neither here nor there.

         I'm intrigued and would love to hear more...  I agree with James 
that such an argument would be central to getting the DMCA overturned in a 
court of law.


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