[free-sklyarov] Fair use "rights"

Paul Gowder paul at paultopia.net
Mon Aug 6 17:40:00 PDT 2001

At 10:10 PM 8/5/01, Jay Allen wrote:
>         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.

Well, I think the clearest argument is one that has been expressed by many 
people many times (incl. Larry Lessig in a few places I think) -- the fed 
gov't's authority to create copyright, as an exception to the standard 
first amendment rights (copyright, being more specific, trumps the first 
amendment since usual rule of construction is the more specific trumps the 
less specific, even if the less specific was enacted later, absent clear 
intent to repeal the original more specific, but the first amendment, for a 
similar reason, trumps the commerce clause), is conditioned on the purpose 
being to promote useful sciences, etc.  Any copyright bill which doesn't 
bear at least a rational relationship to those purposes (and eliminating 
fair use actually is contrary to those purposes) is unconstitutional.

Another possible argument (weaker, in my mind), involves the first 
amendment as modification to the copyright authority, examine intent of 
founders when first amendment was passed, note that they saw extremely 
limited role for copyright (see jefferson quotes etc. posted elsewhere on 
this list), conclude that expanded role is muy unconstitutional.


	-Paul Gowder

"It's because they're stupid. That's why everyone does everything."
     - Homer Simpson

	<paul at paultopia.net>


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