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Re: (Fwd) Re: [dvd-discuss] Digital Rights ManagementGedankenExpe

Beyond the issues of limits predicated on the promotion of progress I
began to ponder the impact of 1A on limits.  While "their is no 1A right
to copyright infringement" is a reasonable response -- copyright law (as
a body and as individual acts) must not act to violate 1A principles. 
Further it is not only the actual text and enforcement of the law -- but
it's "emergent properties" that must be considered in their 1A context. 
A perfect example of an "emergent properties" constitutional argument is
that regarding poll tax and literacy tests.  Facially these do nothing
to violate rights based on ethnicity.  The "emergent properties" of
these laws -- their real world effects -- are in fact regressive.  The
DMCA is a perfect example.  Facially the DMCA says the "fair-use" is
unaffected.  The "emergent properties" of the law is to prevent fair-use
of TPM'd works -- not due to the illegality of the use, but the
unavailbility of tools needed.

To keep 1A meaningful and viable --

(1) There must be a diversity of publishers -- lest the views of a
minority be allowed to function as censors.  Holders of minority
opinions must not be surpressed by the effects of copyright law.

(2) The work must not be censored by the copyright holder -- heirs of
authors with controversial works have been known to suppress those
works.  Imagine granting the heirs (or estate) of Hitler the ability to
suppress "Mein Kampf" as part of a campaign of Holocaust Denial.  The
WWCOG is currently suppressing the writings of their founder Armstrong
-- their goal is to distance themselves from these (non-orthodox
christian sect) views and supress their teaching as the church has
renounce the non-orthodoxies.  However, the WWCOG doctrine and writings
is at least of academic and historic value (to say nothing of the value
to those who did not make the transition to orthodoxy when church
leadership did.  Scientology is a poster-child for this.

(3) The ability to comment, document, chronicle current events should
not be limited to those with a vested interest in the profitability of a
work or body of works (or those with permission from them)

All of this also points to a short copyright term of far less than the
mean lifespan of either or author.

If delved deeply enough several aspects of "emergent properties"
copyright law and their 1A impacts should yield a manifold attack on the
current imbalance from many with standing on these grounds --
historians, despised speakers, minorities and the like.