Re: [dvd-discuss] ClearChannel Plays It Safe

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

--- Harold Eaton <haceaton@hotmail.com> wrote:

> >Because fair use is the balancing of copyright vs first amendment rights, 
> >it isn't simply a policy decision. Broadcasting's public interest 
> >requirements are simply a policy decision.
> 
> I guess you're just one of those people that think the 9th amendment
> has no meaning.  I argue that one of the unenumerated rights is the
> right to transmit RF energy (within some bounds just like free speach
> has its limits). Also the right to receive RF energy if it is incident
> upon you. So for me, it is a constituional .

Actually I'm a strong supporter of the 9th amendment. However I can't find
anything in that amendment that says that an individual can just make up things
and call them a right. The 9th amendment jurisprudence is overly narrow, IMHO,
but you can't just claim the 9th amendment in response to any policy you don't
like. 

A good book on the balance between Judicial Review and democratic government,
with an excellent section on the Ninth Amendment is _Democracy and Distrust, A
Theory of Judicial Review_ by John Hart Ely. It's available in many ordinary
bookstores.

However, if transmiting RF energy is a right, then why do we need the FCC to
regulate it? You should be able to jam anybody as the broadcasting equivalent
of shouting them down.


> I use these "crazy examples" not because they are real, but because
> your line of commerce power arguments and rational basis tests will
> just as easily justify my crazy examples if they were real. Since you can't 
> seem to see that, I'll stop using analogies.

Look, I'm the one who cited US v Lopez, which hopefully marks the end of the
rediculous string of decisions that crested with Wickard v. Filburn. At the
same time, when you move away from the extremes, policy decisions must be made
by majoritarian processes and unless you can state a fundamental right
interest, you almost always lose. That doesn't mean I advocate weak individual
rights. 

Your passage above is the first real attempt I've seen to identify a right that
is abridged. Actually, I have some sympathy for the idea.
 
> Well, Australian ownership of nearly all of our mass media is a real
> possibility. 
That might be an improvement. I've got pretty low expectations.

> You and I have very different views at to what constitutes "power" as used 
> in the famous quote.  Bill Gates has a lot more power than you or
> I do, it's sad that you can't see that.

I think you confuse power with success. Bill Gates cannot force me to do a damn
thing.


> I quoted the law to refute your "property rights" argument to licenses. I 
> didn't bother to quote the part that prevents license transfers that are 
> contrary to the public interest, but it's in there too.  Broadcast license 
> <> property.

After my first post, I did some reading and admited that the law treats
broadcasting differently from the way it treats other forms of the press.
Broadcasting is very similar to "intelletual property" (you made this point and
I'll agree they are "similar"). It is definitely not the same as ordinary
property, but whatever stake is granted can be bought and sold. ClearChannel
absolutely buys the right to broadcast on certain stations.

> >The crucial difference is that the requirement to balance is Consitutional 
> >in the case of Copyright. It's not in the case of broadcasting.
> 
> Yes it is. See above.

Your "RF transmission is a right" would only prove my point, because there is
absolutely no public service requirement in the exercise of rights. The "RF
reception is a right" is great but can't place any obligation on what gets
transmitted by itself.

> Neither would I, but I think we'd be way better off if half the broadcast 
> licenses for radio and TV were reserved exclusively for non-profits such as 
> universities, etc.  The unrestricted conglomeration
> that's accelerating now is NOT a good thing.

Actually, for radio, way more than half are non-profit. The FCC just restricts
them off of the AM/FM bands. For TV, I don't think the market will support much
more non-profit broadcasting than PBS. On Cable, the must carry laws do
implement  some measure of mandated bandwidth for community access.

In the near future, I expect the internet to make the whole discussion
obsolete, since we'll finally get it right by allowing unfettered
communications by parties with a true property interest. To be honest, even
without video and audio, the best coverage is on the web if you are willing to
dig a little.


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