nov 7, 2008
isaac has found the justice-of-the-peace case from alabama, which is close on point, an unconstitutional system for passing out speeding tickets unconstitutional because the enforcers were paid from the take. the declaration of this statute punitive unconstitutional would do a most wonderful service. when we argued Eldred in 1998 the Court then had little or no appreciation for the public domain. The public domain is, in internet terms, all you can get to on the net for free. The law for our digital future was set in place by the smart lawyers and lobbyists for the copyright industry in 1976 before anyone recognized the interest of the mass of coming population of digital natives that value what they can reach and do on the net for free.
Our case is not only against RIAA, it is against the court and court system that is exerting this power. It is against the statutory law, the law the legislature has passed, captured as it was and still in by special interest. Observe that the disproportion between actual damage caused by joel to the copyright holder and the damage mandated by the legislature to be given the copyright holder is in inverse proportion to the lobbying power of the copyright industry in the legislature compared to the lobbying power of joel and the teenagers like him who are meant to be frightened by the punitive damages being imposed.
seems to me we want to seek not only punitive damages for abuse of law and process but also injunctive relief, just as in the justice-of-the-peace case, which, for finding, isaac winds a prize. when the supreme court summarily affirmed the trial judge’s ruling and yet the extortionate practice did not desist, a second case was required in which were joined sufficient parties so that judicial injunction could stop the practice. We seek to join RIAA. We seek injunction not only against the filing of suits but the issuance of threats as well. Let the record companies make their money from people who make commercial use of their music the way it’s done in many other places, and even how it’s done in significant part right here in the United States. Notwithstanding the lobbying power of the copyright industry , let us move law toward an environment in which digital music can be non-commercially shared, instead of holding the law in the dead hand of the past . In the environment of internet any incentive beyond that is neither necessary nor proper as a means of promoting the useful arts. Interpreted to suit a digital age, the “exclusive right” of the constitution extends only to the right to exclude commercial exploitation.
how does this relate to Eldred, in which at oral argument internet was mentioned but once, the argument cast instead on commerce clause grounds. yet the idea is the same. what is this power that congress was granted by the constitution? how far does it extend? The presumption of freedom to share deserves not to be arbitrarily snuffed out amongst children who have been brought up to believe in the liberty to explore and learn on the net, enjoy cooperative connection, values of equality that come with sharing with others who in some measure are different from you, and certainly not to be snuffed out by draconian punitive deterrence.
How does one make argument based on observation that the current misallocations of power have produced distortion even in how we see the problem, distortion that imposes great dangers and costs on the system of law itself, how but by appeal to a vision of the role of law outside the system, Gödel’s proof, appeal to truth outside the system as basis for all action within, in metaphor the value of equitable well-distributed order like the ordinal numbers framed in context transcendental.
Did the copyright clause give congress the power to invest the law’s credibility in telling citizen’s not to click through check boxes? How many check boxes will you click through today, how like clicking to kill the enemies that appear on the screen in the adventure games you grew up playing on your way to how to get where you are going and find what you want, click click, on to the next level.
Is the idea to teach joel tenenbaum, in his sunglasses and redsox shirt, wise-ass kid, teach him the lesson that there is a real world out here. It’s a world of pain imposed on you by power. You were mistaken as a teenager to think you could ignore the warnings, sharing music and porn and digital skill among your adolescent friends. Learn that what you were doing because was morally wrong because you violated law that we have written.
or is it time for the recording industry to see that reality has changed, and all their lobbying power in the congress, and all their litigating power in the courts, and all their manipulation of the public mind to equate sharing music with theft, cannot stop the growth of a digital environment in which peers have ability to gather and share.
i believe the strategists of RIAA see that, and that their litigation strategy is designed to create such a scourge that their real strategy goal of placing copyright filters on the net will come to seem a welcome alternative to the universities and commercial internet service providers on which they will be imposed and to the congress, which will do the industry’s bidding of imposing them.
Is it not your ultimate goal to alter the architecture of the open net in a way that you believe will allow your industry profit. Is that not a motive and purpose ulterior to this litigation.