Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.001.0001
- Subject:
- Political Science, American Politics
Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way ...
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Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way of speech that would build upon existing expression to convey new messages and artistic perspectives.In a seminal 1970 article, Melville Nimmer, the leading copyright and First Amendment scholar of his day, aptly termed the copyright‐free speech conflict a “largely ignored paradox.” Yet today that conflict has come virulently to the fore, and copyright is increasingly chastised as a tool of private censorship.Why has that happened? What values and practices does the copyright‐free speech conflict put at stake? How should the conflict be resolved?These are the principal questions this book seeks to answer. This book explores the copyright‐free speech conflict as it cuts across traditional and digital media alike. In so doing, it juxtaposes the dramatic expansion of copyright holders' proprietary control against individuals' newly found ability to digitally cut, paste, edit, remix, and distribute popular sound recordings, movies, TV programs, graphics, and texts the world over. It tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and assesses how copyright does—and does not—burden speech. Taking First Amendment values as its lodestar, the book argues that copyright should be delimited by how it can best promote robust debate and expressive diversity, and it presents a blueprint for how that can be accomplished.Less
Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way of speech that would build upon existing expression to convey new messages and artistic perspectives.
In a seminal 1970 article, Melville Nimmer, the leading copyright and First Amendment scholar of his day, aptly termed the copyright‐free speech conflict a “largely ignored paradox.” Yet today that conflict has come virulently to the fore, and copyright is increasingly chastised as a tool of private censorship.
Why has that happened? What values and practices does the copyright‐free speech conflict put at stake? How should the conflict be resolved?
These are the principal questions this book seeks to answer. This book explores the copyright‐free speech conflict as it cuts across traditional and digital media alike. In so doing, it juxtaposes the dramatic expansion of copyright holders' proprietary control against individuals' newly found ability to digitally cut, paste, edit, remix, and distribute popular sound recordings, movies, TV programs, graphics, and texts the world over. It tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and assesses how copyright does—and does not—burden speech. Taking First Amendment values as its lodestar, the book argues that copyright should be delimited by how it can best promote robust debate and expressive diversity, and it presents a blueprint for how that can be accomplished.
Lawrence S. Wrightsman and Mary L. Pitman
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199730902
- eISBN:
- 9780199776986
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199730902.001.0001
- Subject:
- Psychology, Forensic Psychology
In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. ...
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In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. In the 40 years since the inception of the “Miranda rule,” its anticipated effect has not been realized. The purposes of this book are to examine the reasons why the goal of the authors of the Miranda ruling has not been met and to identify procedures that move the criminal justice system closer to this goal. Separate chapters deal with four causes: the limitations and compromises in the original decision, the problems in comprehension of the Miranda warnings by various vulnerable populations (adolescents, non-English speakers, the deaf, and the mentally-challenged), the decisions subsequent to the 1966 decision that have eroded its breadth and application, and the efforts by police to avoid the curtailments from the ruling. The final chapter examines possible remedies such as requiring the presence of an attorney when the rights are given and videotaping the entire interrogation.Less
In 1966 the Supreme Court ruled that law-enforcement officers were required to inform criminal defendants about their rights to remain silent or have an attorney present during their interrogation. In the 40 years since the inception of the “Miranda rule,” its anticipated effect has not been realized. The purposes of this book are to examine the reasons why the goal of the authors of the Miranda ruling has not been met and to identify procedures that move the criminal justice system closer to this goal. Separate chapters deal with four causes: the limitations and compromises in the original decision, the problems in comprehension of the Miranda warnings by various vulnerable populations (adolescents, non-English speakers, the deaf, and the mentally-challenged), the decisions subsequent to the 1966 decision that have eroded its breadth and application, and the efforts by police to avoid the curtailments from the ruling. The final chapter examines possible remedies such as requiring the presence of an attorney when the rights are given and videotaping the entire interrogation.
Thomas J. Curry
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780195145694
- eISBN:
- 9780199834129
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195145690.001.0001
- Subject:
- Religion, History of Christianity
Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because ...
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Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because scholars have misinterpreted and manipulated the historical background of the meaning of the Free Exercise of Religion and Establishment of Religion, they have led legislators and judges back into the problem of Church and State that prevailed in Christendom, and that the Amendment solved. As a result, the Supreme Court's interpretation of the First Amendment has reached a point of deep confusion and crisis. Whereas the Amendment was intended to specify government's lack of jurisdiction in religion, modern interpretations of it have conferred upon government power to define the meaning of the Free Exercise of Religion, religious neutrality, and what aids or hinders religion. The way out of the present confusion lies in confining government to what is secular and forbidding it to make religious assessments and decisions. Examining the decisions of the Supreme Court, this work demonstrates that by reconnecting with the history of the First Amendment and approaching it as a limitation on the power of government, rather than as a grant to government to protect religious liberty, the courts can escape the crisis and confusion they are presently experiencing. Religious liberty is a natural right. Within the meaning of the First Amendment, the Free Exercise of Religion means freedom from government jurisdiction in religion, not a government guarantee to allow individuals to exercise the religion of their choice.Less
Protestantism abandoned Christendom by way of the First Amendment of the Bill of Rights, and Catholicism did the same in the Declaration of Religious Liberty of the Second Vatican Council. Because scholars have misinterpreted and manipulated the historical background of the meaning of the Free Exercise of Religion and Establishment of Religion, they have led legislators and judges back into the problem of Church and State that prevailed in Christendom, and that the Amendment solved. As a result, the Supreme Court's interpretation of the First Amendment has reached a point of deep confusion and crisis. Whereas the Amendment was intended to specify government's lack of jurisdiction in religion, modern interpretations of it have conferred upon government power to define the meaning of the Free Exercise of Religion, religious neutrality, and what aids or hinders religion. The way out of the present confusion lies in confining government to what is secular and forbidding it to make religious assessments and decisions. Examining the decisions of the Supreme Court, this work demonstrates that by reconnecting with the history of the First Amendment and approaching it as a limitation on the power of government, rather than as a grant to government to protect religious liberty, the courts can escape the crisis and confusion they are presently experiencing. Religious liberty is a natural right. Within the meaning of the First Amendment, the Free Exercise of Religion means freedom from government jurisdiction in religion, not a government guarantee to allow individuals to exercise the religion of their choice.
Charles W. Collier
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195388978
- eISBN:
- 9780199855421
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195388978.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Despite widespread admiration for the First Amendment's protection of speech, this iconic feature of American legal thought has never been adequately theorized. Existing theories of speech proceed on ...
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Despite widespread admiration for the First Amendment's protection of speech, this iconic feature of American legal thought has never been adequately theorized. Existing theories of speech proceed on the basis of legal doctrine and judicial decisionmaking, social and political philosophy, or legal and intellectual history. But these are not the disciplines one would most naturally turn to in analyzing speech. This book takes a new and different approach. The book develops a general legal theory of speech on the basis of linguistic theory and the philosophy of language. The opening chapters retrace the main conceptual stages in the expression of meaning: from natural meaning, through symbolism, to signification. The book then focuses on three failed attempts to demarcate the outer, definitional boundaries of “speech” in the constitutional sense: prior restraints, obscenity, and defamation. Later chapters analyze symbolic speech (communication by nonlinguistic means) as the key to developing an intention-based theory of speech. The essential elements of the theory are: Nonnatural Meaning; The Signaling of Intent; The Recognition of Intent; and Establishing a Convention. A final chapter applies these insights to the case law of symbolic speech and resolves some basic confusions in the legal literature. This analysis proceeds by way of an original distinction between actual conduct (in the real world) and the “ideal conduct” described in a statute. The former may be described both as communicative and noncommunicative, while the latter has already been conceptualized as either communicative or noncommunicative. This distinction clears up a major legal quandary: how conduct that counts as communication may nevertheless be regulated or prohibited, without running afoul of the First Amendment's protection of speech.Less
Despite widespread admiration for the First Amendment's protection of speech, this iconic feature of American legal thought has never been adequately theorized. Existing theories of speech proceed on the basis of legal doctrine and judicial decisionmaking, social and political philosophy, or legal and intellectual history. But these are not the disciplines one would most naturally turn to in analyzing speech. This book takes a new and different approach. The book develops a general legal theory of speech on the basis of linguistic theory and the philosophy of language. The opening chapters retrace the main conceptual stages in the expression of meaning: from natural meaning, through symbolism, to signification. The book then focuses on three failed attempts to demarcate the outer, definitional boundaries of “speech” in the constitutional sense: prior restraints, obscenity, and defamation. Later chapters analyze symbolic speech (communication by nonlinguistic means) as the key to developing an intention-based theory of speech. The essential elements of the theory are: Nonnatural Meaning; The Signaling of Intent; The Recognition of Intent; and Establishing a Convention. A final chapter applies these insights to the case law of symbolic speech and resolves some basic confusions in the legal literature. This analysis proceeds by way of an original distinction between actual conduct (in the real world) and the “ideal conduct” described in a statute. The former may be described both as communicative and noncommunicative, while the latter has already been conceptualized as either communicative or noncommunicative. This distinction clears up a major legal quandary: how conduct that counts as communication may nevertheless be regulated or prohibited, without running afoul of the First Amendment's protection of speech.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0003
- Subject:
- Political Science, Comparative Politics, UK Politics
Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United ...
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Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United States. The unconstitutionality of the great constitutional changes there.Less
Veto players and win sets in a pluralitarian democracy, compared to those in a proportional regime; and in a unitary compared to a federal regime. Duverger's Law. Constitutional moments in the United States. The unconstitutionality of the great constitutional changes there.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially ...
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The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.Less
The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. This book argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. This book establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a “presumption of liberty” to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. It also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. The book disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0011
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever ...
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This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.Less
This chapter examines how a Presumption of Liberty can protect the unenumerable rights retained by the people by shifting the background interpretive presumption of constitutionality whenever legislation restricts the liberties of the people. One approach that judges may take toward legislation restricting the retained liberties of the people is to protect all the rights retained by the people equally whether enumerated or unenumerated. The question that arises is how one would identify the unenumerated rights retained by the people, or how to define the “substantive sphere of liberty” that is protected by the Privileges or Immunities Clause of the Fourteenth Amendment. Because ignoring all unenumerated rights violates the mandate of the Ninth Amendment, the chapter considers two alternatives: using originalism to identify specific unenumerated rights and the Presumption of Liberty.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the ...
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This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.Less
This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.
Sydney D. Bailey and Sam Daws
- Published in print:
- 1998
- Published Online:
- November 2003
- ISBN:
- 9780198280736
- eISBN:
- 9780191598746
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198280734.001.0001
- Subject:
- Political Science, International Relations and Politics
The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and ...
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The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and thoroughly updated third edition encompasses the many changes in Council procedure that have occurred since the end of the Cold War, which ushered in new possibilities for international co‐operation, and increased recourse to the UN. The last decade has seen the Gulf War and a plethora of new and often complex peacekeeping operations, from Bosnia to Rwanda, and such increased demands and associated expectations have placed a spotlight on the role and functioning of the Security Council. Recent years have seen a greater recourse to informal consultations of Council members prior to Council meetings, and the search for consensual Council decision‐making has led to differences of opinion on both procedural and substantive matters being dealt with largely during such consultations. This has produced calls from non‐members for greater Council transparency. Other proposals, both from within and outside the UN, have advocated reforms to the Council's composition or working methods to ensure its continued effectiveness and legitimacy. The new edition attempts to reflect the many recent developments in the procedure of the Security Council, while still reflecting the considerable continuity that exists with the past. In particular, to illustrate and illuminate aspects of Council procedure, many examples have been used from the UN's early years, since this was the time when many of the original precedents were created. Some of the anecdotes that touch on the human side of Council diplomacy have also been retained. The new edition includes new information on the following: the Provisional Rules of Procedure; public and private meetings; consultations and briefings with non‐members and troop‐contributors, including transparency, Presidential briefings, and orientation debates; informal consultations and ‘Arria formula’ meetings; the appointment of the Secretary‐General of the UN; relationships with the UN General Assembly, the UN International Court of Justice, the UN Trusteeship Council, and the UN Military Staff Committee; subsidiary organs, including sanctions committees; the veto and Security Council membership; Chapter VII resolutions, UN peacekeeping and UN‐authorized enforcement; Council enlargement and de jure and de facto Charter amendments; changes in Council documentation; and ad hoc and regional groupings in the Council.Less
The Procedure of the UN Security Council is the definitive book of its kind and has been widely used by UN practitioners and scholars for over twenty years. This new revised and thoroughly updated third edition encompasses the many changes in Council procedure that have occurred since the end of the Cold War, which ushered in new possibilities for international co‐operation, and increased recourse to the UN. The last decade has seen the Gulf War and a plethora of new and often complex peacekeeping operations, from Bosnia to Rwanda, and such increased demands and associated expectations have placed a spotlight on the role and functioning of the Security Council. Recent years have seen a greater recourse to informal consultations of Council members prior to Council meetings, and the search for consensual Council decision‐making has led to differences of opinion on both procedural and substantive matters being dealt with largely during such consultations. This has produced calls from non‐members for greater Council transparency. Other proposals, both from within and outside the UN, have advocated reforms to the Council's composition or working methods to ensure its continued effectiveness and legitimacy. The new edition attempts to reflect the many recent developments in the procedure of the Security Council, while still reflecting the considerable continuity that exists with the past. In particular, to illustrate and illuminate aspects of Council procedure, many examples have been used from the UN's early years, since this was the time when many of the original precedents were created. Some of the anecdotes that touch on the human side of Council diplomacy have also been retained. The new edition includes new information on the following: the Provisional Rules of Procedure; public and private meetings; consultations and briefings with non‐members and troop‐contributors, including transparency, Presidential briefings, and orientation debates; informal consultations and ‘Arria formula’ meetings; the appointment of the Secretary‐General of the UN; relationships with the UN General Assembly, the UN International Court of Justice, the UN Trusteeship Council, and the UN Military Staff Committee; subsidiary organs, including sanctions committees; the veto and Security Council membership; Chapter VII resolutions, UN peacekeeping and UN‐authorized enforcement; Council enlargement and de jure and de facto Charter amendments; changes in Council documentation; and ad hoc and regional groupings in the Council.
Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.003.0003
- Subject:
- Political Science, American Politics
When does someone's inability to copy, distribute, or build upon a copyrighted work rise to the level of a burden on free speech? When, in contrast, should we readily countenance the restraints that ...
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When does someone's inability to copy, distribute, or build upon a copyrighted work rise to the level of a burden on free speech? When, in contrast, should we readily countenance the restraints that copyright imposes? To answer, this chapter begins with more fundamental questions: What counts as “speech” for purpose of “freedom of speech”? And what free speech principles apply to copyright? This chapter demonstrates that copyright law is an integral part of media and communications policy. It also argues that the important First Amendment value of “expressive diversity” requires a dispersal of communicative power and ample opportunity for speech that directly challenges mainstream culture and popular works. Creative appropriation, the ability to convey one's message and artistic vision by incorporating and building upon mass media sounds and images, thus lies at the heart, not the margins, of freedom of speech. But peer‐to‐peer file sharing is not “speech.”Less
When does someone's inability to copy, distribute, or build upon a copyrighted work rise to the level of a burden on free speech? When, in contrast, should we readily countenance the restraints that copyright imposes? To answer, this chapter begins with more fundamental questions: What counts as “speech” for purpose of “freedom of speech”? And what free speech principles apply to copyright? This chapter demonstrates that copyright law is an integral part of media and communications policy. It also argues that the important First Amendment value of “expressive diversity” requires a dispersal of communicative power and ample opportunity for speech that directly challenges mainstream culture and popular works. Creative appropriation, the ability to convey one's message and artistic vision by incorporating and building upon mass media sounds and images, thus lies at the heart, not the margins, of freedom of speech. But peer‐to‐peer file sharing is not “speech.”
Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.003.0008
- Subject:
- Political Science, American Politics
Copyright law's potential for abridging speech has long been recognized in United States case law, legislation, and commentary. Because of copyright, speakers are often unable effectively to convey ...
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Copyright law's potential for abridging speech has long been recognized in United States case law, legislation, and commentary. Because of copyright, speakers are often unable effectively to convey their message and audiences are deprived of valuable expression. But courts have almost never entertained First Amendment defenses to copyright infringement claims. They have held that copyright's internet “free speech safeguards,” including fair use and the idea/expression dichotomy, provide adequate protection for free speech.This chapter argues that courts should apply the First Amendment to cabin copyright holder prerogatives where necessary to protect speech. It then sharply criticizes the Supreme Court's rejection of a First Amendment challenge to the Copyright Term Extension Act in Eldred v. Ashcroft. Yet as the chapter notes, Eldred nevertheless suggests a couple of ways in which courts could reinvigorate copyright's internal free speech safeguards in light of First Amendment strictures.Less
Copyright law's potential for abridging speech has long been recognized in United States case law, legislation, and commentary. Because of copyright, speakers are often unable effectively to convey their message and audiences are deprived of valuable expression. But courts have almost never entertained First Amendment defenses to copyright infringement claims. They have held that copyright's internet “free speech safeguards,” including fair use and the idea/expression dichotomy, provide adequate protection for free speech.
This chapter argues that courts should apply the First Amendment to cabin copyright holder prerogatives where necessary to protect speech. It then sharply criticizes the Supreme Court's rejection of a First Amendment challenge to the Copyright Term Extension Act in Eldred v. Ashcroft. Yet as the chapter notes, Eldred nevertheless suggests a couple of ways in which courts could reinvigorate copyright's internal free speech safeguards in light of First Amendment strictures.
Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.003.0009
- Subject:
- Political Science, American Politics
Courts are not the only realm in which First Amendment values should come into play in defining and delimiting copyright. Concern over copyright's speech‐burdening potential should also animate ...
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Courts are not the only realm in which First Amendment values should come into play in defining and delimiting copyright. Concern over copyright's speech‐burdening potential should also animate Congressional legislation and Copyright Office regulation and arbitration. This chapter outlines a number of ways in which the Copyright Act could be modified to be more solicitous of speech while still preserving the copyright incentive's positive contribution to our “system of freedom of expression.”The proposals tend toward narrowing copyright holders' proprietary entitlements—in some cases converting them to liability rules. But they do not all result in a net loss for copyright holders. In fact, the chapter proposes mechanisms for payment where today copyright holders receive nothing. The proposals cover copyright's extension to creative appropriation, copyright's inordinately lengthy term, the conflict between copyright and personal uses, the conflict between copyright incumbents and new media, paracopyright, and moral rights.Less
Courts are not the only realm in which First Amendment values should come into play in defining and delimiting copyright. Concern over copyright's speech‐burdening potential should also animate Congressional legislation and Copyright Office regulation and arbitration. This chapter outlines a number of ways in which the Copyright Act could be modified to be more solicitous of speech while still preserving the copyright incentive's positive contribution to our “system of freedom of expression.”
The proposals tend toward narrowing copyright holders' proprietary entitlements—in some cases converting them to liability rules. But they do not all result in a net loss for copyright holders. In fact, the chapter proposes mechanisms for payment where today copyright holders receive nothing. The proposals cover copyright's extension to creative appropriation, copyright's inordinately lengthy term, the conflict between copyright and personal uses, the conflict between copyright incumbents and new media, paracopyright, and moral rights.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0010
- Subject:
- Political Science, American Politics
This chapter examines the role of constitutional amendments in American legal culture. Amendments that have already been approved – such as those that instituted the income tax, the popular election ...
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This chapter examines the role of constitutional amendments in American legal culture. Amendments that have already been approved – such as those that instituted the income tax, the popular election of senators, various forms of suffrage, and Prohibition – and those now being proposed, such as the victims’ rights amendment and a proposed amendment to outlaw flag‐burning – are discussed. The tension between the concept of a “civil society” and such values as freedom of speech and freedom of religion is also examined in a comparative context.Less
This chapter examines the role of constitutional amendments in American legal culture. Amendments that have already been approved – such as those that instituted the income tax, the popular election of senators, various forms of suffrage, and Prohibition – and those now being proposed, such as the victims’ rights amendment and a proposed amendment to outlaw flag‐burning – are discussed. The tension between the concept of a “civil society” and such values as freedom of speech and freedom of religion is also examined in a comparative context.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0013
- Subject:
- Political Science, American Politics
In this afterword, the author discusses the events surrounding the 2000 U.S. Presidential election, in which George W. Bush became President based on a Supreme Court ruling that gave him the majority ...
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In this afterword, the author discusses the events surrounding the 2000 U.S. Presidential election, in which George W. Bush became President based on a Supreme Court ruling that gave him the majority in the electoral college, defeating Vice President Al Gore, who had won the popular vote. The widely held ideal of a popular democracy is contrasted with the reality of the Twelfth Amendment system of electoral votes, and the author asserts that such contrasts point to the ongoing conflict between our “two constitutions” and our own sense of nationhood. Issues of voter disenfranchisement raised in the election are also examined.Less
In this afterword, the author discusses the events surrounding the 2000 U.S. Presidential election, in which George W. Bush became President based on a Supreme Court ruling that gave him the majority in the electoral college, defeating Vice President Al Gore, who had won the popular vote. The widely held ideal of a popular democracy is contrasted with the reality of the Twelfth Amendment system of electoral votes, and the author asserts that such contrasts point to the ongoing conflict between our “two constitutions” and our own sense of nationhood. Issues of voter disenfranchisement raised in the election are also examined.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0001
- Subject:
- Political Science, American Politics
This chapter argues that the Civil War began with one set of purposes, and ended with another. The original motive for resisting Southern secession was preserving the Union, but the final goal was to ...
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This chapter argues that the Civil War began with one set of purposes, and ended with another. The original motive for resisting Southern secession was preserving the Union, but the final goal was to abolish slavery and reinvent the United States on the basis of a new set of principles – at the heart of which lay the Reconstruction Amendments. The principles of this new legal regime are so radically different from our original constitution that they deserve to be recognized as a second American constitution. Where the first constitution was based on principles of nationhood as a voluntary association, individual freedom, and republican elitism, the guiding premises of the second constitution are organic nationhood, equality of all persons, and popular democracy – all themes signaled in Lincoln's famous Gettysburg Address.Less
This chapter argues that the Civil War began with one set of purposes, and ended with another. The original motive for resisting Southern secession was preserving the Union, but the final goal was to abolish slavery and reinvent the United States on the basis of a new set of principles – at the heart of which lay the Reconstruction Amendments. The principles of this new legal regime are so radically different from our original constitution that they deserve to be recognized as a second American constitution. Where the first constitution was based on principles of nationhood as a voluntary association, individual freedom, and republican elitism, the guiding premises of the second constitution are organic nationhood, equality of all persons, and popular democracy – all themes signaled in Lincoln's famous Gettysburg Address.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0006
- Subject:
- Political Science, American Politics
This chapter examines the myriad shadings of the concept of equality. The author discusses the origins and philosophical underpinnings of the phrase, “all men are created equal,” Immanuel Kant's ...
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This chapter examines the myriad shadings of the concept of equality. The author discusses the origins and philosophical underpinnings of the phrase, “all men are created equal,” Immanuel Kant's concept of human dignity, and the impact of religion and nationalism on the theory of equality found in the Fourteenth Amendment. Special attention is paid to Charles Black's alternative reading of the Amendment's emphasis on citizenship as the requisite for equal treatment under the law.Less
This chapter examines the myriad shadings of the concept of equality. The author discusses the origins and philosophical underpinnings of the phrase, “all men are created equal,” Immanuel Kant's concept of human dignity, and the impact of religion and nationalism on the theory of equality found in the Fourteenth Amendment. Special attention is paid to Charles Black's alternative reading of the Amendment's emphasis on citizenship as the requisite for equal treatment under the law.
George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0007
- Subject:
- Political Science, American Politics
This chapter addresses the problems arising from the clash of old and new ideologies during Reconstruction. Questions of federalism and states’ rights, and of equal protection and citizenship in ...
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This chapter addresses the problems arising from the clash of old and new ideologies during Reconstruction. Questions of federalism and states’ rights, and of equal protection and citizenship in light of abolition – illustrated in the landmark Slaughterhouse Case, and the Civil Rights Cases of 1883 – were ultimately referred to the Supreme Court. The author asserts that the Court's interpretation of the Thirteenth, Fourteenth, and Fifteenth Amendments in these cases served to undermine the cause of the new “secret” constitution.Less
This chapter addresses the problems arising from the clash of old and new ideologies during Reconstruction. Questions of federalism and states’ rights, and of equal protection and citizenship in light of abolition – illustrated in the landmark Slaughterhouse Case, and the Civil Rights Cases of 1883 – were ultimately referred to the Supreme Court. The author asserts that the Court's interpretation of the Thirteenth, Fourteenth, and Fifteenth Amendments in these cases served to undermine the cause of the new “secret” constitution.
Istvan Szikinger
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199244089
- eISBN:
- 9780191600364
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199244081.003.0015
- Subject:
- Political Science, Democratization
Describes the process of institutional engineering and the consequences of the absence of a new constitution in Hungary. As a result of the amendments passed by the outgoing communist parliament ...
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Describes the process of institutional engineering and the consequences of the absence of a new constitution in Hungary. As a result of the amendments passed by the outgoing communist parliament following the decisions made at the Roundtable Talks, Hungary has a formally old but substantively new constitution. This evolutionary approach has been warped by the formation of a parliamentary super‐majority that can easily amend the Constitution further in order to suit its political goals. The chapter points out the shortcomings of the Hungarian Constitution, such as the lack of protection from majority tyranny and no real progress in the field of human rights protection. The chapter also emphasizes problems in the political environment in Hungary and how it affects the chances for success in adopting a formally new Constitution. Political parties in Hungary are unable to integrate, or even to convey and express the legitimate interests of non‐partisan organizations, movements, and groups.Less
Describes the process of institutional engineering and the consequences of the absence of a new constitution in Hungary. As a result of the amendments passed by the outgoing communist parliament following the decisions made at the Roundtable Talks, Hungary has a formally old but substantively new constitution. This evolutionary approach has been warped by the formation of a parliamentary super‐majority that can easily amend the Constitution further in order to suit its political goals. The chapter points out the shortcomings of the Hungarian Constitution, such as the lack of protection from majority tyranny and no real progress in the field of human rights protection. The chapter also emphasizes problems in the political environment in Hungary and how it affects the chances for success in adopting a formally new Constitution. Political parties in Hungary are unable to integrate, or even to convey and express the legitimate interests of non‐partisan organizations, movements, and groups.
Gary Scott Smith
- Published in print:
- 2006
- Published Online:
- January 2007
- ISBN:
- 9780195300604
- eISBN:
- 9780199785285
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195300604.003.0010
- Subject:
- Religion, Religion and Society
Ronald Reagan’s religious convictions were crucial to his understanding of the world and performance as president, but few scholars have provided substantive analysis of his faith and its impact on ...
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Ronald Reagan’s religious convictions were crucial to his understanding of the world and performance as president, but few scholars have provided substantive analysis of his faith and its impact on his policies during his tenure in the White House. Although the circumstances of Reagan’s life and the seeming inconsistencies between his beliefs and his practices make his faith difficult to explain, it appears to have been genuine, very meaningful to him, and essential to his political philosophy. Reagan firmly believed and often declared that God intended America to be a beacon of hope, faith, freedom, and democracy — “a city on the hill”. Reagan was deeply influenced by his godly mother, Nelle, and raised in the Christian Church (Disciples of Christ). Reagan’s firm belief that God had a plan for his life was fortified by his survival of an assassination attempt in March 1981. In many addresses, proclamations, letters, and private conversations, Reagan stressed his faith in God and prayer, the inspiration of the Bible, and the divinity of Jesus. Numerous leaders of the religious right were troubled by his infrequent church attendance and his wife’s interest in astrology. Although historians debate the nature of Reagan’s personal faith, they concur that he used religious rhetoric, discussed religious themes, and spoke to religious groups more than any other 20th-century president. Religion played a very important role in Reagan’s 1984 reelection campaign. Reagan’s personal life was not a paragon of evangelical piety, but his worldview was strongly shaped by his understanding of biblical teaching. His faith affected many of his policies, most notably his endeavors to curb abortion, pass a school prayer amendment, secure tuition tax credits, and oppose communism.Less
Ronald Reagan’s religious convictions were crucial to his understanding of the world and performance as president, but few scholars have provided substantive analysis of his faith and its impact on his policies during his tenure in the White House. Although the circumstances of Reagan’s life and the seeming inconsistencies between his beliefs and his practices make his faith difficult to explain, it appears to have been genuine, very meaningful to him, and essential to his political philosophy. Reagan firmly believed and often declared that God intended America to be a beacon of hope, faith, freedom, and democracy — “a city on the hill”. Reagan was deeply influenced by his godly mother, Nelle, and raised in the Christian Church (Disciples of Christ). Reagan’s firm belief that God had a plan for his life was fortified by his survival of an assassination attempt in March 1981. In many addresses, proclamations, letters, and private conversations, Reagan stressed his faith in God and prayer, the inspiration of the Bible, and the divinity of Jesus. Numerous leaders of the religious right were troubled by his infrequent church attendance and his wife’s interest in astrology. Although historians debate the nature of Reagan’s personal faith, they concur that he used religious rhetoric, discussed religious themes, and spoke to religious groups more than any other 20th-century president. Religion played a very important role in Reagan’s 1984 reelection campaign. Reagan’s personal life was not a paragon of evangelical piety, but his worldview was strongly shaped by his understanding of biblical teaching. His faith affected many of his policies, most notably his endeavors to curb abortion, pass a school prayer amendment, secure tuition tax credits, and oppose communism.
Ray A. Moore and Donald L. Robinson
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780195151169
- eISBN:
- 9780199833917
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019515116X.003.0018
- Subject:
- Political Science, Democratization
The last week of July was a critical period for the framing of Japan's postwar Constitution. Ashida Hitoshi appointed 14 Diet members (including Kita Reikichi and Inukai Takeru) to a special ...
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The last week of July was a critical period for the framing of Japan's postwar Constitution. Ashida Hitoshi appointed 14 Diet members (including Kita Reikichi and Inukai Takeru) to a special subcommittee. It was assigned the delicate task of combing through the text and, where necessary, preparing amendments, based on the preceding weeks’ discussions. Ch. 16 recounts how the subcommittee – under the watchful eye of Charles Kades, deputy director of SCAP's Government Section (GS) – devoted particular attention to the preamble, the correct terms to express popular sovereignty, and Article 9, renouncing war and armed forces. It was during this period that Article 9 was significantly amended. Ch. 16 carefully examines the intentions of the framers of these amendments.Less
The last week of July was a critical period for the framing of Japan's postwar Constitution. Ashida Hitoshi appointed 14 Diet members (including Kita Reikichi and Inukai Takeru) to a special subcommittee. It was assigned the delicate task of combing through the text and, where necessary, preparing amendments, based on the preceding weeks’ discussions. Ch. 16 recounts how the subcommittee – under the watchful eye of Charles Kades, deputy director of SCAP's Government Section (GS) – devoted particular attention to the preamble, the correct terms to express popular sovereignty, and Article 9, renouncing war and armed forces. It was during this period that Article 9 was significantly amended. Ch. 16 carefully examines the intentions of the framers of these amendments.
