This is what "fair use" is; it's a (legal) harmonization of the first amendment and the original Constitution. As far as the legal system is concerned, it settled this matter hundreds of years ago. I doubt you'll convince anyone to reopen the matter, and this isn't the avenue we should take anyhow. If you're going to go strict Constitutionalist, the word to be focusing on is limited. Is it a limited time when Congress retroactively extends the copyrights every time the expiration dates approach? Unfortunately, Lessig tried this last time and failed, though the ruling was such that the next time it comes up it might do better.
Not correct. This is one of the things I dislike about the constitution and why when someone tells me I should go into law, I say that I would hate it. When the constitution says "freedom of speech", it has nothing to do with speech. What it is interpreted as is "freedom to express one's opinions". To be sure, this is better than freedom of speech. Speech is something that you do with your mouth. Freedom of speech does not explicitly protect your freedom to write stuff down, much less freedom to transmit information across a wire. It is only about speech.
I wish the constitution actually said "freedom to express one's opinion". The problem with the way it is now is that the supreme court could easily take away our freedom of expression. Right now, they interpret freedom of speech to be freedom of expression but in the future they may change their minds and decide that "freedom of speech" really means "freedom to cook waffles".
There really isn't that much correlation between what the law says and what we actually get out of it.
But back to the main point, "freedom to express one's opinions" may not be limited by copyright monopoly. Copyright is over a particular way to express a particular set of opinions or facts, not over the opinions or facts themselves, so copyright doesn't apply.
Exactly. The OP argument is too cute by half. Basically the 1st Amendment protects "the freedom of speech", not all speech. Courts have routinely ruled that the freedom of speech doesn't extend to libelous material, and I'm pretty sure they would conclude likewise about copyrighted material.
This has to be one of the least eloquent, least stirring most important ideas ever. We live with hypertext, in a world where Marshal McLuhan's entire "medium is the message" rules us in deeply different interconnected ways, yet people are allowed to claim mediums for themselves as inventions when in fact it's merely expression, not novel craft.
If copyright were declared unconstitutional, that would render the GPL (et al) toothless.
Edit:I'm sorry that someone was offended by this, but I thought it was worth mentioning given that many of those that might celebrate arguments against copyright would consider this an undesirable consequence of that happening. I never know with the HN crowd.
I was under the impresssion the first 10 amendaments were released with the constitution. They aren't actually "amending" it. Is that not the accepted viewpoint?
Are there other cases where the one of the first ten amendments supercedes something in the constitution?
The Bill of Rights was proposed as part of the original constitution but was left out as a compromise. Most of the opponents weren't against the rights, on the contrary they thought the bill would be redundant and unnecessary.
So are there any examples where an amendment 1-10 was treated as an amendment and overruled something in the constitution? Or do courts not see them as "amendments?"
More like, it's redundant. Copyright is by definition a monopoly. I find the phrase amusing in its attempt to invoke some sort projected instinctual fear of monopolies that we're all supposed to possess.
The 21st amendment "overrides" the 18th amendment not because it comes later, but because it specifically repeals the 18th amendment:
"The eighteenth article of amendment to the Constitution of the United States is hereby repealed."
If there is any precedent for the statement that "a later amendment supersedes earlier text of the constitution" this is not an example.
A better argument, unfortunately rejected by SCOTUS, is that unlimited extensions to copyrights as currently allowed are not permitted by the copyright clause, which authorizes exclusive rights to authors for "limited Times." Unlimited extensions should not be allowed any more than should one million years be allowed as copyright term.
