Shouting copyright in a crowded theater
by Rich Fiscus on July 31st, 2008
The Copyright Clause of the US Constitution may be one of the most misunderstood parts of the document. Not because people don’t understand what it means, but because they seem to think it exists in a vacuum. After all, how else could you justify the lengths to which our government seems prepared to go to protect intellectual property.
But no law exists in a vacuum. Every right you have can potentially be canceled by someone else’s. Take free speech for example. The First Amendment to the Constitution grants every person the right of free speech, but it’s not universal.
If you yell “fire” in a crowded theater you can be arrested. But why? Don’t you have a right to say what you want? Well yes - and no. By yelling “fire” under this circumstance you’ve put other people at risk. Now you’ve infringed on their rights.
Even though there’s no right to be safe written into the Constitution it does exist in a legal sense. In fact there are many rights that were assumed by the Founding Fathers, and therefore they didn’t feel the need to codify them as law. Another example is privacy.
While there’s no Constitutional prohibition against it we can also assume that other people don’t have the right to intrude on your privacy. To be sure there are places we have no right to privacy. If you walk down a public street or enter a public building and someone listens in on a conversation you’re having you can’t sue them for violating your privacy. But if they sneak into your living room and put a microphone in a light fixture it’s a completely different matter.
So why would we give record labels or movie studios the right to filter internet content? In order to do that they first have to “read” the data you’re sending or receiving, and when you send a transmission directly from your computer to someone else’s across the internet you have a reasonable expectation of privacy. Under normal conditions there’s no reason to believe that a third party will have access to your computer’s “conversation” with someone else’s.
The labels and studios, and the lawmakers they’ve bought and paid for, assure us that there’s a pressing need to protect these companies’ rights. They have the right to protect their copyrights and it’s important we help them. And to be fair there’s some truth in that, which is why we have copyright laws. But the people also have a right. It’s a right so fundamental and obvious the framers of the US Constitution didn’t even think it needed to be specifically mentioned.
If we’re going to intrude on that right shouldn’t it be for something more important to our country than an extra couple of million dollars for a record label?
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