Re: When is an MP3 file like a lighthouse?

From: Alex F. Bokov (
Date: Sat Oct 27 2001 - 13:26:00 MDT


On Sat, 27 Oct 2001, Mike Lorrey wrote:

> "Alex F. Bokov" wrote:

> > Why is protection of publishing industries more important to American
> > politicians than ammendments I, IV, V, and X?
> How does the 1st Amendment apply? Your right of free expression does not
> mean you have the right to express other people's expressions without
> their consent.

When I put up a website called and lawyers
from Disney threaten me with action on the grounds of trademark
infringement (and even if I know I'd win I have to submit to their
defacto censorship because I cannot afford the legal fees of
constantly defending myself against legal harrassment). When Dmitri
Sklyarov gets arrested and thrown in jail under the DMCA because he
delivered a scholarly lecture explaining the vulnerabilities in
Adobe's crypto scheme. When it's illegal for me to email, recite,
paint, sing, or scribble down the source code to DeCSS.

> The 4th? Considering an artist who never makes any money because his art
> is stolen by millions of ungrateful fans starves to death, I propose
> that those convicted of intellectual property theft must live in a
> homeless shelter with food stamps and government cheese. That is surely
> not cruel and unusual. It is no worse than their victims got.

Please, Mike, don't undermine your credibility with melodrama. Nobody
in America smart/interesting enough to have millions of fans, grateful
or not, will ever in a homeless shelter with foodstamps and government
cheese, much less starve. This kind of statement might goad Samantha
into insulting you, but I will not stoop to that level. Let's continue
this dialogue as adults interested in freedom and progress, shall we?

"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."

Now how are you going to bust somebody for intellectual property
violations without either a) sniffing their packets or b) siezing and
searching their computer?

> The 5th? dont' see it

It's right after the 4th. Due process, self incrimination, etc. I
admit, I'd need to do more research before I could cite specific ways
current copyright legislation infringes on this one, so I withdraw it
for now.

> The 10th? that is states rights.

More than states rights. Peoples rights too.
"The powers not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the states
respectively, or to the people."

This essentially sanctifies the principle that everything not expressly
prohibited by law is permitted, and any authority that is not expressly
given a power is denied that power.

> An amendment does not eliminate something written into the body of the
> Constitution unless it specifically says it does. One could say that
> intellectual property rights, because they exist within the
> constitution, are the 0th Amendment rights.

Section 8, clause 8.
[The Congress shall have the 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; "

I'm arguing that because of shoddy lawmaking, ignorance, and
technological changes, most of modern copyright law no longer promotes
the progress of science and useful arts, and instead hinders it. To
hear some economic luddites today, "Beat It" is Michael Jackson's
property that he is entitled to defend to the death just as if it was
his car or his home. Constitution 8:8 is actually must less vehement
in this regard, than said economic luddites... and it was written by
people who were anything but soft where it came to real property
rights! It can be interpreted that intellectual property is not a
natural right the way the right to rival, excludable goods and the
right to protection from unreasonable search and seizure are. Rather,
the Constitution gives the legislature power to mandate limited
recognition of intellectual works. Furthermore, note that it says
nothing about PROMOTERS of writings and discoveries. Only the authors
and inventors themselves. So the publishers and estates that control
the rights to so many intellectual works today, and are the source of
the most legal harrassment, have no Constitutional basis for their

At any right, supposing that according to the Constitution, I can be
prosecuted for pirating Michael Jackson's songs. But according to the
Constitution, I may not be submitted to search and siezure without
probable cause and due process, and my speach may not be censored. If
the only way to catch me pirating is by search and siezure without
probable cause (since I blend right into the non-pirate population)
and, if what I choose to say are instructions on how to be a l337
p1r4t3 d00d and/or the lyrics to "Beat It", then it appears that we've
got ourselves a Constitutional contradiction. Darn, and here I was
thinking only religious documents contradict themselves.

So, what happens when an ammendment turns out to contradict something
written into the body of the Constitution, just not specifically?

My gut reaction is to apply a legal Occam's Razor to this-- how many
layers of legislation come between each of the following claims and
the Constitution:

"I have a right to inspect your computer, sniff your network
connection, and have you arrested if you provide information that will
help other people pirate the intellectual work that I own the
distribution rights to."


"I have a right to not have my computer or network connection tampered
with unless there is a solid reason to believe I am a criminal, and I
likewise have a right to say anything I want as long as I don't follow
up my words with physical actions or yell 'movie' in a crowded

- --
* I believe that the majority of the world's Muslims are good, *
* honorable people. If you are a Muslim and want to reassure me and *
* others that you are part of this good, honorable majority, all *
* you need to say are nine simple words: "I OPPOSE the Wahhabi cult *
* and its Jihad." *

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