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Re: Because An admissions office won't answer the goddamn phone, A reply. jfclark - 22/01/2003 05:59:35 PM


Obscenity has to be unable to say something. If ABC was airing 'pornographic' content with some sort of statement to make, I would allow it. That said, ABC CAN be regulated because of the 'public interest' argument. It can be easily stated that it runs counter to the public interest to broadcast porn on saturday mornings, when Kids can see it.

Maybe we're just arguing about the million different ways to define "obscenity." I'm sure that plenty of stuff that's sold only in adult video stores doesn't fit your definition, but it obviously fits some communities' definitions.

I disagree with Child Porn not because it is obscene, but because it harms children. In fact, I've argued in the past that the best solution might be to take siezed archives of child porn, make them availiable, for a fee to those who need to get it out of their system, and use the proceeds to 1) crack down on child abuse/molestation, and 2) find other ways to reduce the demand for Child porn that actually harms children. I agree with the courts past rulings on 'virtual' child porn because no child is being hurt. I don't see any reason why existing material should be burned. destroying it only maintains constant demand for new material. (see the case of Pee Wee Herman and his archives of 60's gay erotica.)

Okay, not really a jurisprudential disagreement then. I object to child porn both because of its harmful effect and because it's obscene. This allows me to agree that "virtual porn" shouldn't be banned (although it can and should be regulated) but that other child pornorgraphy can legally be banned. As for what to do with confiscated porn, I don't know really (never thought about it before), but it seems to me that part of the social harm to children is that the harm continues every time the pornography is shown or distributed. Kind of like libel, where every instance of publication (i.e., every copy) constitutes a separate act of libel.



but this one - you've hit the other issue close to my heart. The Eldred decsision was so horribly wrong it's frightening. I'm okay with extending copyrights for the FUTURE. But Retroactive? How on earth does that promote the progress of science and the useful arts? Because thats what copyrights are supposed to do. Basically, Congress has given disney 20 years of free money.

Actually, I don't think we disagree too much here. I agree that for defunct companies there's no real social good being served by allowing copyrights to remain inviolable for 90 years. And I don't agree with the 70-year term for individual copyrights, and certainly not with any additional extension. There's a big difference between these kinds of copyright holders.

But as a matter of jurisprudence, the Supreme Court decision was fair and appropriate. It basically has to do with the Court not willing to undermine the will of Congress when the Constitution clearly requires judgment calls to be made as to what constitutes furtherance of progress in the arts and sciences. There are plenty of reasons to strike down Congressional statutes, but there was no Constitutional reason to dispute Congress's findings as reflected in the Sonny Bono Act. I also don't buy the retroactivity argument, because the copyright in Mickey Mouse is quite active indeed and a reasonable person could decide that it furthers progress in the arts to allow Disney to continue to prosper from that copyright.

I still have some hope. I think it was Lessig who has recently put forward a proposal for a nominal fee to renew copyrights (50 dollars or somesuch trifle) that would allow moneymaking copyrights to be continued, while those which the creator wants to free into the public domain could be allowed to lapse. This would allow Disney to continue to see profits, while the works of F. Scott Fitzgerald and obscure 40's composers, and 70's underground music could be made readily availiable, for the dissemination of knowledge and the PROGRESS OF ART. One of the keys to the Early USA's success was rampant piracy of IP, after all.

Your references to 70's music just indicate to me that deciding how long copyrights should be allowed to endure is a fairly arbitrary matter. Why 70's, and not more recent works by other bands that have since folded?

And in any case, copyright holders even now are perfectly free to license or fail to enforce their copyrights. I know, I know, greedy media conglomerates never act in the interest of art, etc., etc., but it does happen all the time.

Lessig's proposed solution seems to concede my principal point, which is that there's no principled reason for suggesting that Disney, an active company whose corporate life depends on being able to keep exclusive use of its copyrights, should have to forfeit its corporate existence in effect by virtue of its success in keeping a valuable copyright (Mickey Mouse) relevant and marketable.

In addition, Lessig's model (more regulation, ever more regulation) would create an absolutely astounding bureaucratic nightmare, and, in some cases, act as a punitive tax on successful companies. (Can you imagine how a major publishing house would be able to stay in business, other than by raising prices and offering lower compensation to authors--hardly furthering the progress of art--, if it had to renew copyrights annually on every old book in its backlist?) I'm a corporate lawyer, and I recognize how greedy some of my clients can be, but I also am despairingly familiar with the tendency of well-intentioned regulation to morph into a monstrous mess.

On drinking age - I take it you are referring to the highway money for 21? I would say thats allowable, though underhanded. Not an uncomfortable extreme in my eye.

I agree (and so did the Supreme Court in Dole v. South Dakota), but there's a huge contingent of folks out there that thinks there should be an "unconstitutional conditions" doctrine acting as a limitation on government power.

Public Financing with Spending Limits, I agree with. Public Financing with Full Disclosure, I support. Public Financing with restrictions on the CONTENT of a candidates message? I disagree with. Bizarre racist candidates should be weeded out by mandating public support for financing. Not by banning them.

I agree--if we had public financing, you couldn't have content-based restrictions. But I disagree with any imposition of spending limits anyway.

The Israeli situation I assume you are referring to is the removal of 5 Arab knesset members from the ballot? That wasone of the most deplorable things I have ever seen.

Actually, I was referring to the recent embarrassment of Sharon's press conference being yanked off the air because of a general ban on campaigning in the weeks preceding an election. As far as I know that's a content-neutral restriction, but it seems ridiculous to me. I wasn't aware that there were even worse aspects to Israeli electoral jurisprudence.



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