[free-sklyarov] [declan@well.com: FC: Is Rep. Boucher's online-music licensing bill constitutional?]

[Seth Finkelstein]

On Mon, Sep 10, 2001 at 05:19:01PM -0700, Karsten M. Self wrote:
> Read.

	Well, if we're also on the topic of the harmful effects of 
Libertarian proselytizing, the following message is good reading
too. It's extensively researched, from someone who *is* a lawyer.

	I love the concluding paragraph:

  "You've really got to be more skeptical, Declan, about these Libertarian
   fringe groups and their penchant for calling for activist judicial
   intervention into the proper functioning of the Congressionally-created
   and regulated marketplace for works subject to copyright."

http://groups.yahoo.com/group/cyberia-l/message/37645

  Date: Mon, 10 Sep 2001 21:56:53 EDT
  To: CYBERIA-L at LISTSERV.AOL.COM
  From: "Eric C. Grimm" <ericgrimm at MEDIAONE.NET>
  Subject: Re: Is Rep. Boucher's online-music licensing bill constitutional?
  Comments: To: declan at well.com

It is perhaps a helpful to understand some of the history behind compulsory
licensing and copyright.  Compulsory licensing has in fact been a feature of
U.S. copyright law for quite some time now.  Jessica Litman chronicles that
history quite well in her recent book "Digital Copyright."  Another place to
look for some of that history is Broadcast Music, Inc. v. Columbia
Broadcasting System, Inc., 441 U.S. 1 (1979).

Even a cursory reading of the relevant Fifth Amendment caselaw would suggest
that several aspects of the CFIF's proposed takings analysis are
problematic.  See Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992) (the "economically viable use of his land" case); MacDonald, Sommer &
Frates v. Yolo County, 477 U.S. 340 (1986); Ruckelshaus v. Monsanto Co., 467
U.S. 986 (1984); Agins v. City of Tiburon, 447 U.S. 255 (1980); PruneYard
Shopping Center v. Robins, 447 U.S. 74 (1980); Penn Central Transp. Co. v.
New York City, 438 U.S. 104 (1978); Euclid v. Ambler Co., 272 U.S. 365
(1926); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922); Hadacheck
v. Sebastian, 239 U.S. 394 (1915).

Of particular, interest, I think, are the Ruckleshaus (trade secrets),
Pruneyard (free expression vs. private property), Penn Central, and Euclid
v. Ambler Realty cases.

The relevant questions include not only (1) whether -- as CFIF puts it --
compulsory licensing supplies "just compensation" (and certainly compulsory
licensing of copyrights always has been understood to do so, perhaps even by
definition), but also  (2) whether there is "private property" in the first
place, or merely copyrights recognized (optionally) by Congress under the
Copyright Clause of Article I of the Constitution (The Ruckleshaus case
suggests that there may be arguments to be made on both sides of this
issue -- although the Ruckleshaus case is about a "property" right
recognized as a matter of state law), and (3) whether there has been any
"taking" of any such property for "public purpose" (arguably not, since the
government is not becomming the holder, as opposed to the granter, of the
copyright).

You've really got to be more skeptical, Declan, about these Libertarian
fringe groups and their penchant for calling for activist judicial
intervention into the proper functioning of the Congressionally-created and
regulated marketplace for works subject to copyright.

Eric C. Grimm
CyberBrief, PLC
320 South Main Street
Ann Arbor, MI  48107-7341
734.332.4900
eric.grimm at CyberBrief.net


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