SIVACRACY.NET

I wonder how much of this losing battle has to do with the rhetoric employed by the losers. The Constitutional authority for copyright, does not specifically confer or reserve any rights to users, only to "authors and inventors". Any legal or rhetorical argument which pits constructs such as "free culture" and "consumers' digital rights" against the media industries well understood, "property rights" is going to lose every time. It is losing every time. Fair Use, though legally defined, is sufficiently ambiguous that it doesn't stand up either.

Perhaps what is needed is a change in the rhetoric and the nature of the attack. I believe that that prefatory statement, "To promote the Progress of Science and useful Arts", is vastly underutilized. It is arguable whether the DMCA and other acts foster the end which is addressed in the prefatory statement. Take the word "progress". Is progress solely to be considered the bottom line of Disney and Time Warner Communications. Does perpetual copyright perpetuate "progress" or impede it? What is a useful art? I think the "free culture" crowd knows and agrees on the answers.

Copyright tyranny originates, exclusively, in the movie and music industry. Maybe it's time to say they aren't "useful". That would put them on the defensive and move the debate to better legal ground for the "free culture" and "digital rights" activists. So stop arguing for fair use and rights and start arguing for "progress" and "usefulness". They would be more effective in their fight if they fought it in those terms.

There is nothing especially novel about this idea. This is analogous to the arguments, legal and historical, which the gun ban lobby has used for a century to restrict gun ownership. The only difference being that the prefatory statement in the Copyright Clause spells out the scope of the clause much more precisely than does the prefatory statement in the Second Amendment.