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January 18, 2012

Comments

Corps are separate and distinct legal entities whose function requires that they have the same "rule of law" rights as individuals, including constitutional rights.

Really? Seems like a conclusion without an argument to me. Not to mention the fact that corporate statutes don't (as far as I know) state that corporations have the same "rule of law" as individuals. Nothing in the Virginia statutes (where I'm a a member of the bar) states that "corporations shall have the same constitutional rights as individuals". You are making this up.

Just because corporations have been recognized as a convenient mechanism for business enterprise by many different jurisdictions doesn't mean that they should be entitled to Constitutional rights. In fact, that they exist in places without a Constitution that looks like the U.S. model suggests that they are capable of operating just fine without U.S. Constitutional rights.

The concept of http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Teachout-Final.pdf>corruption is critical to this issue.

Thanks, bobbyp. Just curious what led you to this article. Are you a law student or did you find it otherwise? If you don't want to identify as such, it's okay - just wondering how I can discover ...

Interesting question that occurred to me reading McKinney's posts. The claim is advanced that there is a category of "person" distinct from "natural person" into which corporations fall. Constitutional rights that adhere to "persons" thus adhere to corporations, while those that adhere to more specific classes like "citizens" do not. Specifically:

There is nothing in the constitution that can even unreasonably be construed as extending the right to vote to a non-natural person who must also be a citizen.

Here's the question, though: is there anything in the Constitution that can (even unreasonably) be construed as allowing states the ability to extend the concept of personhood to non-"natural persons"?

Let's riff on that for a moment: a corporation is a legal instrument created under the auspices of the states for commercial reasons. These instruments do not exist in the constitution; their existence is not guaranteed by the constitution; and, as noted previously, their existence can be revoked at any time. [Although their dissolution is not considered "murder", or even "execution".] So, since this is entirely a legal instrument created by the states...

1) Can the state endow personhood onto an arbitrary group of people?
2) Can the state endow personhood onto non-humans? Could it declare a dog to be a person in the constitutional sense?
3) Can the state endow personhood onto inanimate objects? Could a rock be elected Senator?

Or, if you prefer your examples slightly less contrived...

4) Can the state grant corporations the personhood necessary to avoid "enslavement" (i.e. to forbid acquisition) or to be treated as property?
5) Can the state grant corporations the personhood necessary to vote?
6) Can the state grant corporations the personhood necessary to become citizens?
7) Can the state grant corporations the personhood necessary to stand for election?

And so forth. The argument can't be advanced that those powers aren't in the Constitution because nothing about corporations is; neither their current structure nor any other hypothetical one.

Fundamentally, then, I think the problem is in this statement here:

Corps are separate and distinct legal entities whose function requires that they have the same "rule of law" rights as individuals, including constitutional rights.

There are a couple of problems with this:

a) Their function requires that they have similar protections under the rule of law as people. It does not require that they have (some of) the same rights as individuals.
b) Even if they did, possessing (some of) the same rights as an individual pursuant to their function as a legal instrument of commerce does not mean that they are individuals -- and that category error is indeed a slippery slope.

[This feels like a fairly fundamental design anti-pattern in programming but I'm having trouble putting my finger on it. Using a bogus superclass instead of an interface or a member? Not really sure; other code monkeys out there, what say you?]

What I find particularly amusing is that I think that McKinney's position is probably held by many self-described "originalists", and I can't imagine a position less in keeping with the original founders' intent than declaring a legal instrument equivalent in liberty to human beings. Not a knock on McKinney at all, who's clearly his own person :), just... amused in general, I guess.

A corporation has rights only in the sense that it is a proxy for and derives rights from the rights of the natural person(s) it represents.

Sapient,

Quite prosaic, actually. I googled "constitution + corruption".

Activity like this keeps me from firebombing my local http://mysite.verizon.net/lardil/id221.html> Starbucks. A classic example of how the current rules shape even a heartfelt attempt to "do the right thing". There is no room for queasiness in the corporate realm. It's one of those personhood attributes that is obviously discouraged.

I think you are conflating lobbying with the broad range of political speech in which corporate entities engage.

Lobbying is a species of protected activity.

So, no conflation needed. It's baked in.

Look for "no spending limits on lobbying" to be the next rallying cry from our pals at Cato et al. It'll probably be on the SCOTUS docket in 2013. CU will be the precedent.

In for a penny, in for a pound McK. If it's a right, it's a right, and if corps have it, they have it.

None of this splitting hairs and trying to find distinctions where none exist. Isn't that your position?

No shilly-shallying. Because their will be no shilly-shallying from their quarter.

You will also notice in the article that contra Brett, the need for lobbying and currying political favor does originate with politicians (they didn't shower Schultz with ideas for trade deal scams) ....it's our system, a system whose foundation is money and power and the drive to pivatize profit, and socialize costs.

These forces originate with private actors.

oops...does not originate with....

Must have been a Freudian slip of my liberal Will To Power.

McK:

Public schools and the military are two situations in which some speech can be and is suppressed. Its a rocky area of constitutional law that, quite frankly, I had forgotten about until I saw your example. It is permissible for employers, including the military, and schools during school hours, to restrict political activity. But note: this is not suppression by the feds, other than by attenuation.

Wow. It's like the Hatch Act doesn't even exist. Good thing, too, because if it did, it'd probably define what political activity is considered. And since we know that's fundamentally undefinable, we'd probably end up with human sacrifice, dogs and cats living together... mass hysteria!

McK:

You asked "why" in the constitutional sense: the constitution only preserves the right to vote for natural persons who are citizens. If that wasn't made clear before, I am making it clear now. There is nothing in the constitution that can even unreasonably be construed as extending the right to vote to a non-natural person who must also be a citizen.

[...]

Anarch:

Here's the question, though: is there anything in the Constitution that can (even unreasonably) be construed as allowing states the ability to extend the concept of personhood to non-"natural persons"?

Sure. There's absolutely nothing in the Constitution stopping a State from doing so. Citizens are granted various protections through which certain classes of them are guaranteed the right to vote, but nowhere are they guaranteed an exclusive right. All references to voters are as "the People of the several States" or "the people thereof [a state]". If a corporation is a person of a state - and I must say that seems to be the prevailing opinion of the corporatists - I cannot see anything in the Constitution that is actually forbidding the several States from granting the vote to corporations. Or just some corporations. Or only the corporations that offer the nicest bribes. Is that unreasonable enough for you?

(Since I couldn't link the OSC's discussion of the Hatch Act into that last comment w/o plunging into the abyss of the spam filter, here. And do note that there are categories of employees who are barred from participating in political activities as defined therein ("an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.") both while on duty and off.)

I'm sure Jefferson would be happy to see the monied interests have so much power.

About as happy as he'd be to see all the African American citizens going 'round with rights and such.

Yes, I know: that's not an argument. I agree. It's an expression of frustration, nothing more.

I'm going all-out in my on-line narcissism (which is what blogs are really about, right?) by quoting myself on the previous thread that Sebastian linked in the current post:

After reading this thread, I'm ending up at the point where I don't think the distinction between corporate speech and personal speech is useful. In theory, I can make the distinction, but I can't really do much with it after that. (I was not there before, or at least I didn't think so.)

I'm at the point where it really is about money, regardless of whose money it is, be it a corporation or individual or group of individuals. (It just happens to be that corporations have more money than just about anyone else.) And it's about how money can be employed, mostly on TV and somewhat on the radio.

How invasive is it and how wide is its reach? How much advantage does it gain in putting forth one message over another, maybe at the virtual exclusion of all others?

I think I'm in more or less the same place. Even if I don't think corporations have constitutionally guaranteed rights, there a practical considerations in attempting to limit their rights as opposed to the rights of humans.

While 'corporations = people' and 'money = speech' intersect, given the financial resources that corporations have, the two are not the same, and I think taking on either one by itself can be helpful.

Here's my question: Is anyone's (corporate or human) right to free speech unduly infringed if limitations on the resources that can be used to make that speech are such that the ability of anyone to speak is no less than what virtually everyone else would have, absent those limitations, given the distribution of resources among the populace?

Does the existence of new technology and the accumulation of vast sums of wealth among a select few give those few the right to speak louder than everyone else, simply because those few have the right to speak at all?

If so, does that not, in practical terms, diminish the rights of the many, who lack the resources to speak remotely as loudly, to speak?

I'm not suggesting that we attempt to make the playing field perfectly even. Money will always give advantage. I'm only suggesting that reasonable limitations on spending, even if only in the area of political campaigns, can mitigate the imbalance of political power held by the wealthy few (people or corporations) in relation to the not-wealthy many, and that it can do so without violating anyone's right to free speech. In fact, I'd say it can strenthen most people's right to free speech.

If you start at about the 9 minute ten second mark (it's already beeped for woik) yous wise guys overheah will loin why we can't do nuttin bout regulation, increasing taxes, or money talkin da talk in political campaigns:

http://www.hulu.com/watch/321291/the-daily-show-with-jon-stewart-thu-jan-19-2012

All of it stifles the creation of made men in our, watchamacallit, country.

This clip brought to you by the corrupt enemies of SOPA.

As an aside, Newt Gingrich's performance last night, in which he (the Boston Strangler of civility) takes on John King, media gangbang buddy of genocidal cracker punk and media-king-pin Erick Erickson, who is in turn Gingrich's most rancid supporter, outside of bird of prey (credit T-Bogg for that image, I think) Callista, for asking a question about an issue first brought to a "head" by Republican made man and mainstream media eff Matt Drudge regarding the parallel wanderings of Newt's d*ck and his political aspirations, and to which fundamentalist "values" voters (by which I mean those who, despite the wishes of canines everywhere, will tolerate man-on-dog sex as long as either the man or the dog defeats the swarthy enemy in the White House and eliminates their taxes and health insurance for both of Newt's sickly former wives) in the old Confederacy rise in full-throated support of Newt's snarling lie blaming "liberal" media for exposing the truth is -- take a breath --- yet another reason to visit one's local gun store to peruse the various instruments by which the murderous policies of Republican sub-human vermin filth vying for political office will need to be defended against.

Would the perennially victimized NRA like to f*ck with me?

Money will always give advantage.

Sadly, true. Perhaps the solution is to ensure that those who currently have it all have less of it in the future, and that We The People can drown any randomly chosen corporation in a bath-tub with little or no effort. Under those conditions, I would have no problem with unlimited 'free speech'.

I am therefore of the opinion that this conversation is, in some important respects, premature.

"Here's my question: Is anyone's (corporate or human) right to free speech unduly infringed if limitations on the resources that can be used to make that speech are such that the ability of anyone to speak is no less than what virtually everyone else would have, absent those limitations, given the distribution of resources among the populace?"

Is the "virtually anyone else" an identifiable class, such as, say, incumbent politicians? So that what you're really talking about is incumbents having greater ability to speak than challengers, or citizens who want the incumbent unseated?

The class including "virtually anyone else" is those people who don't have hundreds of thousands or millions of dollars to spend on political campaigns.

I'm all for being able to challenge incumbents, and I imagine there are ways to make that possible other than allowing any given legal entity, corporate or human, to spend unlimited amounts of money on political campaigns.

That aside, what do you think about the constitutional free-speech aspect of what I'm saying, Brett?

I mean, maybe we could try changing the way we set up districts, or do something more with term limits?

Is there some reason monied interests wouldn't be as likely to support incumbents as opposed to challengers?

A lot of the latter bits of this discussion have lurched into personal attacks which seem unproductive. I don't think anyone *here* at least is advocating for unbridled corporate control of politics (even as much as currently exists) nor limitless power to control free expression.

Unfortunately, the immediate history of the United States strongly suggests that even with various presidents such as Bush or Obama at the helm, the Department of Justice will lurch almost immediately to censorship based on political viewpoint.

The fact that by only the second election in which the rules will firmly in place, the big G government was attempting prosecution based on film that should have been clearly within the First Amendment's protection should cause some pause. The fact that it doesn't is what disturbs me.

Russell, you seem to want me to trust the government in an area where it has already proven that it isn't trustworthy. From the previous discussions, and please correct me if I'm wrong, nearly everyone here agrees that the movie produced by Citizens United ought to have been protected. You don't like the other stuff that came with the case, but you seem to agree with that.

But you aren't even remotely wrestling with the idea that IN ACTUAL HISTORICAL FACT, the government attempted to enforce punishment based on that movie. Further the government argued that it was a clear violation, didn't implicate the First Amendment, and signaled that they would be willing to go after corporate assets even if they were merely the distribution channels of someone else's speech.

I didn't make that up as a hypothetical. That is the case that the government brought.

Talk about narrow measured responses isn't talking about the governmental history of abusing this area of law. The government has repeatedly, and quickly jumped to enforcements that seemingly everyone here thinks are clearly unconstitutional.

Why does that seem to cause no pause? Shouldn't we at least wrestle with that a tiny bit before jumping immediately to "You guys, with the weird paranoid fantasies of Absolute State Control, I have no idea how to have a conversation with. Because you're not talking about anything I'm talking about."

These aren't fantasies. This is a sober analysis of exactly what the government immediately tried to do with the last two iterations of campaign finance law.

Why does that seem to cause no pause?

Seemingly, because the SCOTUS overruled the executive branch? Because checks and balances worked (the over-broadness of the ruling not withstanding)?

Who knows what reaction there would have been around here and among the left in general had the administration actually been able to do the crap they wanted to? It's not like the ACLU didn't jump in, as it was.

nearly everyone here agrees that the movie produced by Citizens United ought to have been protected.

I absolutely agree that the basic issue in CU was correctly decided. Further, I think McCain/Feingold is a crappy law.

IMO it's inevitable that campaign finance laws are going to be a farrago of crap, because everyone is trying to dance around the fundamental issue, which is that large pools of private wealth have profoundly corrupted the political process.

So, we end up with stupid laws about whether somebody can broadcast a snarky movie on the third Wednesday before the second full moon of the campaign season.

The law deserved to be tossed out.

The reason I am less disturbed by all of this than you think I ought to be is that I'm not looking to strip Constitutional protections away from all actors, only specific ones.

So, speech by people will continue to be protected, as it is now.

And, of course, everything we're talking about is basically hypothetical, because even with the level of anti-corporate-personhood that is currently abroad, I am not seeing anyone, anywhere, propose actual legislation / amendments / what have you to actually change anything.

Perhaps the hypothetical nature of the issue gives me license to be cavalier.

In any case no, I do not trust the government to do the right thing out of the goodness of it's heart. I expect the institutions that currently labor so assiduously to preserve the rights of corporations to do the same for actual human beings.

The big issue, to me, is how we would get from where we are, to where we might want to be. There is a ton of legal and social infrastructure that is based on the idea that corporations hold rights. A lot of what the infrastructure does is quite valuable.

I would be 100% in agreement that we would not want to simply cut the Gordian knot, wake up the next day, and hope for the best.

But I have no question that the kinds of protections that we all do agree need to be in place could be ensured without the fiction of corporate personhood.

If anything like this actually does happen, it's going to be incremental. And every step along the way will be debated at great length, tested and re-tested. Progress will not be in a uniformly forward direction.

Realistically, *were it to actually happen*, putting aside the doctrine of corporate personhood for purposes of enforcing Constitutional liberties would probably play out over 50 or 100 years.

That's about how long it took to put into place. More like the 100 year number, actually.

So, I'm not alarmed.

But nothing will happen, at all, as long as the basic idea continues to go unchallenged. The Overton Window does, and needs to, move in more than just one way.

These aren't fantasies

I'm sorry, but claiming that restricting the ability of corporations to engage in the political process will inevitably usher in a regime of totalitarian censorship *is* a paranoid fantasy.

Likewise, speculating about whether folks who want to limit the rights of corporations are secretly plotting the death or enslavement of their political opponents, likewise.

Crazy, paranoid fantasy.

Nothing personal intended toward either Brett or McK in that, either, both are people for whom I have a high regard, and with whom I enjoy discussing this stuff.

But there's no reply to make to stuff like that other than to scratch your head and shrug.

We all say crazy stuff now and then. God knows I do. So, no animus towards either of those guys, from me.

But I also don't have to pretend that it's something that deserves serious rebuttal.

"Who knows what reaction there would have been around here and among the left in general had the administration actually been able to do the crap they wanted to? "

We don't have to guess. The ACLU was roundly criticized for opposing the government on Citizens United.

"Seemingly, because the SCOTUS overruled the executive branch? Because checks and balances worked (the over-broadness of the ruling not withstanding)?"

But in a discussion about implementing similar rules in the next iteration, isn't highly relevant to know how the government acted in the recent past? If we were discussing torture and the US government, talking about ticking time bomb scenarios would be clearly ignoring the reality of what the government does with the power to torture. It's recent exercise of that power showed that it did so when there was not a time crunch, when it was not sure that the person had relevant information, and when it was not even sure that the person being tortured was a member of the terrorist organization being investigated. That is highly relevant because it means that talk about narrowly targeted ticking time bomb situations are distractions from the way the government actually works.

The same is true in the free speech area. Talking about narrowly targeted laws that mysteriously hamper the speech of corporations while leaving legitimate political discourse unprosecuted is contrary to the history of such rules under the relatively civil rights aware Obama administration, much less the Bush administration.

I'm not being paranoid when I note that the Obama administration and Elana Kagan (current Supreme Court Justice) attempted to punish people for creating a political documentary which had non-slanderous characterizations of Clinton that she didn't like.

If I can't trust Obama's DOJ not to abuse this power, why should I trust any one else's DOJ not to abuse the power?

Seb: I'm not being paranoid when I note that the Obama administration and Elana Kagan (current Supreme Court Justice) attempted to punish people for creating a political documentary which had non-slanderous characterizations of Clinton that she didn't like.

I thought they were attempting to punish the 501(c)(3) non-profit entitled "Citizens United," not people.

Also, let's not impute Kagan's client's views to the good Justice Kagan.

Further, from the second paragraph of J. Kennedy's opinion: The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

So what is left of NAACP v. Alabama then?

If I can't trust Obama's DOJ not to abuse this power, why should I trust any one else's DOJ not to abuse the power?

You shouldn't, just as you shouldn't trust the DOJ not to abuse any power it has. But you do have to allow them power none the less, because they can't protect us in legitimate ways without some sort of power. I'm not suggesting that laws be written without caution or that the courts shouldn't be able to overrule what the other branches do, based on the law as written.

The government has checks and balances, but the private sector does not - except for the market and the government. I don't expect the market to prevent the undue influence of money on politics - quite the opposite, in fact - which leaves us with the imperfect check provided by the imperfect government in our imperfect world.

And I'd be curious to know what you think about what I wrote earlier on constitutional freedom of speech, practical concerns aside, Sebastian, since IANAL but YAAL.

Looking at the Delaware corporate law, a corporation's charter can be repealed upon failure to pay the annual franchise tax (to simplify a bit), and if so "the charter of the corporation shall be void, and all powers conferred by law upon the corporation are declared inoperative."

IOW, if the corporation fails to pay the tax, it ceases to exist (absent cure). Thus, e.g., Exxon could vanish for not paying a very nominal sum (for it) to the State of Delaware (or wherever it's registered) and the similar provision that applies to human beings is...?

My opinion here is shaped by the following:

1. It is crucial to distinguish between membership type non-profit organizations and for-profit corporations. The former generally are the types of "voluntary associations" where the free speech right of the individual members is simply aggregated. Fine. I think there is widespread agreement on this, by the way.

2. For-profit corporations are entirely different, despite the Court''s opportunistic lumping of the two types together. It is just unreasonable to assume that the shareholders are largely in agreement on political questions, especially elections.

3. For-profit corporations enjoy legal privileges that make it possible for them to assemble massive resources. That's not just a consequence, it's really a purpose of those protections. This is important. To the very large extent that those resources give large corporations power, that power is a grant by government. The right to form immortal limited liability business organizations is not in the Constitution.

4. Corporate power is controlled by a handful of individuals who are, in fact, not much accountable to their shareholders for their use of it.

So I think that it is quite legitimate to restrict corporate speech (by for-profit corps), because what we blithely call "corporate speech" is in fact the use of other people's money by executives and directors to promote their own preferred candidates. This is anything but a "voluntary association."

Now, I can fix this. Let's have a law that says:

1. Every year public corporations must announce to their shareholders their planned budget for campaign activity. This should also include a description of candidates they are likely to support and, to serve as examples, those they have supported in the past. No BS like "we support candidates who like liberty and free markets, etc." Names. Specificity.

2. The above information will be included in the proxy statement that corporations are already required to send to shareholders. No big cost there.

3. On the proxy card that shareholders already send back they are asked to authorize the per-share budgeted amount for the shares they hold. Shareholders who do not authorize it get the per share amount rebated to them and the political budget is accordingly reduced.

4. Institutional holders, such as mutual funds, must request rebates.

What this does is make the corporation's "speech" truly that of individuals voluntarily aggregating their money. Notice that this is actually not difficult to implement, since it can easily piggyback on proxy procedures already in place.

How about it?

In 1996 John Boehner, currently Speaker of the House and second in line to be POTUS, walked the floor of the House handing out checks to buy votes in favor of tobacco subsidies.

The tobacco industry prevailed.

So yeah, it sucks that DOJ was picking on CU. You know what? They didn't prevail.

Today, each and every day, 24/7, the federal government of the US, and in particular the Congress, is openly and explicitly for sale.

McK will tell me "that's not speech, it's lobbying". Lobbying is protected under the 1st Amendment, and corporations enjoy that protection.

I am, frankly, NOT THAT WORRIED about the federal government shutting off all speech that they disagree with. First of all, there is no imaginable speech that "the federal government" is uniformly either for or against. Second, they don't have the means to do so, there are too many channels available. Third, the law has thus far provided adequate in preventing them from prevailing in whatever effort they make to do that.

So claims of totalitarian censorship are, frankly, hypothetical. That situation does not exist, the apparatus to make it exist does not exist, and the will to make it happen in anything like a thorough enough manner to be worth the candle does not exist.

It is not in evidence. CU notwithstanding.

What IS IN EVIDENCE, now, today, each and every day, is the profound and thorough-going corruption of our government by private wealth.

It is not only in evidence, it is banal in its ubiquity.

Your concerns are valid but are not the reality. People speak all the time, each and every day, all day, about everything, from every imaginable point of view, and I can't imagine what the DOJ could possibly do to turn that off.

My concerns are our current reality. Not hypothetical, not what-if, but present day, tangible reality.

Checks on the House floor, and the man is Speaker of the House. That's the reality.

At the risk of drifting back to the original issue,

It appears that, whatever its merits, the blackout effort has been a success. At least, the report I saw not only had SOPA and PIPA moved from a majority of those in Congtress taking a position being in favor to a majority being opposed. The total number of supporters had dropped in absolute terms. Including a couple of so-sponsors removing their names and moving to opposition.

It appears that companies can substantially influence politicians without ever giving them (or their surrogates) any money.

I'm not being paranoid when I note that the Obama administration and Elana Kagan (current Supreme Court Justice) attempted to punish people for creating a political documentary which had non-slanderous characterizations of Clinton that she didn't like.


I just putting this up a second time rather than try to rebut charges of paranoia. In further rebuttal, Seb has detailed specific and extensive powers to regulate and punish speech claimed by this administration. Not hypothetical--it has happened, and they were stiff-armed by that much despised conservative majority on the SCt. It isn't hypothetical when an administration tries something and doesn't get away with it. That is called a 'failed attempt.'

I'd like to see an on-point response to Seb's documented, and clearly anti-liberty, positions advanced by the Obama administration before the SCt.

I like internet companies, I like getting access to movies, books and music free. I don't care that this whole issue is about who gets paid for it, not whether it is available. I don't want to have to pay.

So Google using its billions of dollars worth of Klout to make sure I can steal IP from movie studios is certainly good speech/money that should be protected.

Or maybe I am just great at rationalization.

Third, the law has thus far provided adequate in preventing them from prevailing in whatever effort they make to do that.

I'm headed home for an early start on the weekend, but I wanted to note this one: it is of minimal consolation that the law you are advocating changing was adequate to prevent an even graver injustice. Moreover, 'adequate' is an overstatement-- it was barely adequate, a 5-4 decision.

HTD, "I'm not suggesting that laws be written without caution or that the courts shouldn't be able to overrule what the other branches do, based on the law as written."

But on what basis can they overrule it if we remove associative speech rights? Russell has suggested again and again that corporations don't/shouldn't have Constitutional rights. A movie will rarely be made by just one person. It will often be made by groups of people.

Byomtov: "For-profit corporations are entirely different, despite the Court''s opportunistic lumping of the two types together."

This is a key area of disagreement I have in this discussion. McCain/Feingold didn't make the distinction. And that was wholly intentional. The DOJ didn't make the distinction. And that was wholly intentional. Throughout the case, the courts gave multiple opportunities for the DOJ and Kagan to make that distinction. They didn't. That was wholly intentional. Campaign finance laws that don't muzzle independent associative groups aren't the kind of laws that the real live politicians want.

I'm perfectly ok with disclosure requirements for corporate speech however, and your proposal looks like a fine start (I'd apply it to unions too btw).

Russell "So yeah, it sucks that DOJ was picking on CU. You know what? They didn't prevail."

But the reason they didn't prevail is because of a legal doctrine that you want to get rid of.

HTD I'm not sure if these are the thoughts you wanted me to respond to, but if it isn't, let me know.

"Here's my question: Is anyone's (corporate or human) right to free speech unduly infringed if limitations on the resources that can be used to make that speech are such that the ability of anyone to speak is no less than what virtually everyone else would have, absent those limitations, given the distribution of resources among the populace?"

I'm not sure I understand what you are saying. But let me see if I can get at it with more concrete illustrations. You seem to be saying that the government should be able to restrict corporations to creating speech/using press to that level available to the general populace.

So it *sounds like* you are saying that the government should be able to restrict for example the political content of Hollywood movies (or indie films beyond the output of single people). That sounds like it can't be right but it is what I'm getting from your comment. It sounds like you are saying that the political commentary of the NYT could be banned unless the average person had access to the same reach. That sounds like it just can't be right, but that looks like what you are saying.

I'm really trying not to strawman. But those two examples seem to be ok under what you're proposing.

It isn't hypothetical when an administration tries something and doesn't get away with it. That is called a 'failed attempt

What is hypothetical is the state determining what can and can't be said.

That does not exist.

How do I know? Because I'm saying whatever the hell I want. So are you. So is pretty much anybody with an interest in doing so.

The absolute worst case under discussion here was the showing of one movie, on one cable channel, during a period of time when a crap law said it was not allowed.

How far is that from absolute state censorship? How long is your ruler?

And as it turns out that case did not hold.

Here is my on-point commentary about the powers that the Obama administration claimed:

It was a boneheaded argument. They were wrong. They lost.

Am I being dismissive of everyone's concerns about the right of people to speak?

No, I am not. I am trying to discuss those concerns in light of what the reality is.

You appear to be arguing that, absent corporations having Constitutional rights, attempts like that of DOJ to suppress speech they don't like would somehow inevitably succeed.

I don't find that particularly credible.

Seb says yes, but that's the doctrine that was used to thwart the power grab.

That's because that is the doctrine we have. We need a better one.

CU should have prevailed for the simple and obvious reason that *people* were making their views known on a topic of public interest.

The corporate rights thing is not essential to that argument, and is not essential to preserving the rights of *people* to speak.

But on what basis can they overrule it if we remove associative speech rights?

Show of hands - who wants to remove associative speech rights?

Look, here are what seem to be the arguments in favor of preserving Constitutional rights for corporations, and here are my replies.

Argument: People organize under the corporate form to engage in legitimate political speech.

Me: Fine, continue to do so. Carry on.

Argument: But then we have to distinguish between corporations that are people organizing to engage in protected speech, and corps organized for other purposes.

Me: We do that now.

Argument: But there may be weird fuzzy areas where we have to distinguish between speech that is political in nature and other kinds of speech that might not deserve the same level of protection.

Me: We do that now.

Argument: Most of the entities that own or manage the material means by which speech is expressed are corporations. How will the rights be protected if they don't hold them.

Me: The *exact* analogy to this currently exists with communications protected by the 4th Amendment, but we manage to protect them in that context based on the rights being held by the *people* who are doing the communicating, not the corporation that owns the channel.

The burden of proof is on you to explain why speech is different.

Argument: Corporations need a subset of the rights available to natural persons in order to carry out the purposes for which they are created.

Me: Fine. Grant them those privileges by law.

Have I missed anything?

I don't mean to be a [email protected], we just seem to go around and around the same points every time this comes up.

I could be missing something crucial, but as far as I can tell granting corporations civil rights under the Constitution is completely unnecessary to guaranteeing those rights to humans.

And granting them those rights is bolloxing our public life to an amazing degree.

Enough already. Cut the freaking cord. Do so responsibly, and prudently, and with due regard for the pragmatic, tangible effects.

But cut the damned cord.

I like getting access to movies, books and music free. I don't care that this whole issue is about who gets paid for it, not whether it is available. I don't want to have to pay.

Glad to hear you like libraries. Support your local library!

So Google using its billions of dollars worth of Klout to make sure I can steal IP from movie studios is certainly good speech/money that should be protected.

Or maybe I am just great at rationalization.

Or maybe you are just not great at network technology. <appeal_to_authority>I've got a Master's in CS, with a focus on network security. The bills in question were monstrously awful. Not 'cause "oh noes I can't has free stuff" but 'cause "oh noes they breaked Teh Interwebs".</appeal_to_authority>

Sebastian,

This is a key area of disagreement I have in this discussion. McCain/Feingold didn't make the distinction. And that was wholly intentional. The DOJ didn't make the distinction. And that was wholly intentional. Throughout the case, the courts gave multiple opportunities for the DOJ and Kagan to make that distinction. They didn't. That was wholly intentional.

So what? I make it, as do many others here who disagree with you.

I don't see a lot of people on your side making that distinction either. Maybe they did during the case, or maybe not. I don't know. You suggest that those who favor restricting corporate speech really want to shut down membership associations. I suggest that many of those who speak nobly of the rights of citizens to form associations really want to be able to tap into vast, anonymous, wells of corporate cash.

How does this matter to our discussion?

Let's cut to the chase. Why can't we just http://crookedtimber.org/2012/01/20/selling-votes/#more-22933> sell our votes to the highest bidder?

You know, we have, as a nation, expended a great deal of political energy trying to deal with corrupt political machines, corrupt government employees, corrupt unions......but corrupt corporations, not so much lately.

So I'll offer a deal. Conservatives can have their unlimited corporate personhood and its money=speech paradigm. All I want is the repeal of Taft-Hartley. Because unlimited money is setting the foundation for a civil war, the center will not hold, and the unintended consequences we'll suffer as a result will far exceed those of the ferved imaginations we see here.

"Have I missed anything?"

Yes. You miss the part where anything is different if we hold all of your assumptions true. If we hold them all true, nothing changes at all. And I know you aren't satisfied with the status quo, so I don't understand what you think you are getting out of the change you want to make.

"Or maybe you are just not great at network technology. I've got a Master's in CS, with a focus on network security. The bills in question were monstrously awful. Not 'cause "oh noes I can't has free stuff" but 'cause "oh noes they breaked Teh Interwebs"."

I have a BS in CS and have run technology/internet BUSINESSES for 20 years and this is utter crap.

It is all about free stuff for the millions of people that protested outside of the few companies who make their living providing free stuff.

And a library is licensed to loan books, that have to be returned or you get charged full price, and the library buys at least some book. There are lots of fine and potentially profitable for all business models that follow that example. Neither SOPA or PIPA (or sopapilla) prevent that.

The technical challenges are real, but the free stuff people just kill it because they want to get and use free stuff to make money. And it doesn't break the interwebs.

IMHO, some version of SOPA is necessary even if it doesn't accomplish much. What it might accomplish is pointing out to millions of people that they are stealing just as certainly as if they went next door and stole their neighbors car. Just because a massive criminal enterprise is difficult to stop doesn't mean we should all think it is ok.

What is completely unworkable is demanding that content creators have to monitor the internet and find every individual instance of theft and request it to be taken down with no other consequences to the provider. That just ensures the criminal enterprise is protected.

CCDG, it is quite possible to agree that something needs to be done regarding Internet piracy, and still think that SOPA was a horribly written law. One which would result in lots of unintended consequences. And one which had enormous potential for abuse as written.

you are correct wj, IMHO the primary opponents of the bill didn't care about how poorly the bill was written. It had already been changed and could have been improved, they just cared about killing any attempt.

The people who wrote the bill (movie studios etc.) certainly set their cause back two years by overreaching, but aside from the lack of at least minimal due process it contained mostly things you would have to do to have any impact.

People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can't possibly be effective.

"you are correct wj, IMHO the primary opponents of the bill didn't care about how poorly the bill was written. It had already been changed and could have been improved, they just cared about killing any attempt."

Yes, and I'm ok with that. The government showed that it was making a hash out of the whole project and that every time it approaches the subject it makes a hash out of it. Rather than waste lots of time making a hash out of it again, we should approach things differently.

"People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can't possibly be effective."

And exactly like RICO I'd prefer that we stop trying that approach. If you can't save the village without destroying it, maybe you're doing the wrong thing.

I'm really trying not to strawman. But those two examples seem to be ok under what you're proposing.

I understand completely. I wrote that very generically, without providing context. I was writing within the context of political campaigning, under the assumption that there was a compelling interest for the government to limit that specific type of speech, as opposed to just any speech at all. There is no reason to prevent people from making movies.

In the case of the NYT, and I've brought this up before, freedom of the press is something unto itself AFAICT, since it is listed as a right in addition to freedom of speech, not as some sort of exposition or clarification of what freedom of speech means. (What about that, anyway? No one seems to address that point. People on the pro-corporate-personhood side keep bringing up newpapers and such as though it is freedom of speech they rely on rather than freedom of the press. I don't get it. But, again, IANAL.)

Seb,

I would love to hear one alternative "approach" that doesn't simply equate to capitulation to the most blatant criminal conspiracy in the history of mankind.

You miss the part where anything is different if we hold all of your assumptions true. If we hold them all true, nothing changes at all.

Maybe it's because it's late, but unfortunately I don't understand your point here.

Can you possibly expand on this?

Thanks Sebastian.

Also, just wanted to say that CCDG has more than a point regarding SOPA.

It is IMO true that it's not a very good law, and it's IMO true that the folks pushing it are basically trying to use the law to avoid having to come up with better business models.

But content piracy is a real thing, and it takes money out of real people's pockets.

The people who wrote the bill (movie studios etc.) certainly set their cause back two years by overreaching, but aside from the lack of at least minimal due process it contained mostly things you would have to do to have any impact.

People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can't possibly be effective.

Over-reaching is an understatement. The utter lack of due process in Sopapilla would have wreaked havoc on the Internet. It wasn't so much that it could be abused, but that it was designed to be abused. Heavily. And the people who wrote the bill (MPAA, RIAA, etc.) have never shown the least trace of restraint or responsibility in this regard, nor any concern for collateral damage, nor even much concern for lawfulness when it's them who's acting. Sopapilla is far more ripe for abuse than RICO, not insignificantly in that the degree that it empowered copyright holders to act on their own.

SOPA/PIPA would not have eliminated online piracy by any stretch. They'd have slightly curbed it, and as a side (?) effect had massive negative impact on many completely legitimate websites, and significantly raised the cost of doing business online. They are ill-conceived from a technical standpoint, and pretty much awful for anyone who isn't an aggrieved copyright holder with a "damn them all, I will get my pound of flesh" attitude. You can argue this level of intrusiveness and potential for abuse is necessary to curtail online piracy, but even if it is there needs to be due process and accountability that SOPA/PIPA very pointedly omitted. They're awful bills. They'd not succeed in their stated aims, but they would do severe damage to the Internet.

Also, and more succinctly... what Russell said. As usual. <sigh>

SOPA etc. has direct precedents in an age long gone (i.e. when I was a kid). I remember attempts to either ban the selling of blanc audio/video tapes (and later blanc CDs) or to extract a fee for each to be paid to the entertainment industry. Similar with photocopying machines. The industry claimed that about the only reason for audio/video recorders and photocopiers to exist was to enable copyright violations and theft and therefore those things should not be allowed in the hands of commoners or at least (that was the compromise position) heavily fee-ed (even if used for other purposes). Somehow both book publishers and the recording industry survived the failure of these attempts.
Caveat: I am well aware that there is such a high density of copyshops in the vicinity of universities because students will photocopy expensive textbooks* and in university libraries because everyone and his genetically engineered dog copy scientific journal articles.
The problem then and now is that the attempts to control the abuse of technology are so far in excess of any reasonable approach that they would in essence kill legitimate use while at the same time usually totally failing in achieving their goals (to a large degree because the lawmakers lack any technical understanding).
The most recent and most blatant attempt over here was to extend the definition of 'performance' of copyrighted materials to humming and whistling the tune in private (with no intended audience). The GEMA (the performance fee collecting agency) went to court over this but failed on all accounts. The judges would have none of it. Not that they were copyright pirates themselves (although I assume they were as law students ;-) ) but this simply was total overreach and would have required Orwellian measures to enforce anyway. The GEMA has a well-earned bad rep for going after the weakest targets. Like kindergarten ('you did not buy a copy of this songbook for each kid but used some mechanical or digital copies on at least one occasion. Please send us a million bucks or we will sue you to death'). Btw, If you happen to be a Nazi, you may run into double trouble since some songs are both forbidden and still copyrighted (yes, those songs that one can hear in all those old war movies. The legal successors of Horst Wessel etc. still have the copyright even if singing the song in public is illegal).

*I have copied and will copy books that I cannot acquire legally with reasonable effort. In some cases I have even tried contacting the publisher first to see, if they have either some copies left or plan to reprint in the forseeable future. I also downloaded some music where I was unable to get my hands on the CD in question. Those are strictly spoken copyright violations but with no financial damage to anyone (but profit for the copyshop owners). Since this is not a case of 'can't afford' but of 'can't acquire' I see no moral problem there. In some cases I have even replaced my copy with the original when it became available again somehow many years later.

"But content piracy is a real thing, and it takes money out of real people's pockets."

On the other hand, copyright is a real thing (an artificially created monopoly), and it takes money out of real people's pockets (the rest of us).

But if somebody pays me enough, I'll vote for it.

"What it might accomplish is pointing out to millions of people that they are stealing just as certainly as if they went next door and stole their neighbors car."

Sadly, no. Those two things are different in nontrivial and legally significant ways that are obvious to anyone not trying to polemicize.

If we hold them all true, nothing changes at all

OK, it's not 1:30 in the AM, I think I follow you now.

What would be different, even if all of my assumptions were factored in, would be that we could pass a law saying that for-profit corporations are not allowed to participate in the political process, whether through financial contributions, contributions in kind, use of resources like corporate aircraft, etc etc etc.

If we wanted to, we could even pass laws saying whether, and to what degree, corporate funds could be employed in lobbying, and/or people acting as agents of corporations could participate in lobbying.

We would not *have to* do any of those things. But we *could* do them, if we thought they were needed.

That's what would be different.

Who knows, maybe corporations would enjoy not having to budget millions and millions of dollars for political graft every year. It could be a win/win.

But basically that is what would be different.

bobbyp wrote:

"Because unlimited money is setting the foundation for a civil war, the center will not hold, and the unintended consequences we'll suffer as a result will far exceed those of the ferved imaginations we see here."

I think this is about right, he concluded fervedly.

I was reminded the other day that Citizens United Not Timid was originally founded by Gingrich hitman and professional liar David Bossie back in HillaryCare days, and that led me to wondering if Thomas Jefferson held that "watering", as in "the tree of liberty must be watered from time to time with the blood of patriots" was a form of free speech, with equal currency to the Crown's money, protected by the First Amendment.

As to SOPA/SIPA, I agree that the law is poorly written and represents ridiculous overreach, but I wonder why Megawhatchamallacit, the service shut down by the Feds the other day can't have a business model along the lines of Apple, which has royalty payments built in to its distribution model, if I'm understanding how these things work, which I'm probably not.

I, natch, am an American, and want to collect every cent and more of what's owed to me should my up-til-now-nonexistent-and-may-they-never-see-the-light-of-day creations, God forbid, and simultaneously I want all of yous guy's creations downloaded to me gratis, probably in the middle of the night, to save time.

After all, keep the government out of my free Medicare, and whatever else the King of England does, I'll start throwing tea overboard if I have to in any way pay a tax, fee, or royalty to support the defense required to transport that tea across oceans to my lips.

I see no obvious solution to these problems in a culture that features, to mixed reviews, wealthy celebrities shoplifting high-end cosmetics and apparel.

By mixed reviews, I refer to our collective public outrage at said celebrities and say, investment bankers, when they get caught, but our private, closeted why-didn't-I-think-of-that and puckish admiration for the clever chutzpah of the scoundrels.

Who's "we" kemosabe, you might well arsk?

I don't know.

Can we get back to corruption for a minute?

It seems to me a basic premise of democracy that speech is the very opposite of corruption. By "speech", I mean what I think the framers of the Constitution meant: loud, public speech; published or broadcast speech; speech that can be heard by innocent bystanders as well as the interlocutors.

Corruption involves a different kind of speech -- hushed, conspiratorial speech. "Congressman, vote for this earmark (or regulation, or tax loophole) and I will give you a bag of cash," is certainly speech, but I cannot imagine the speaker seeking 1st-Amendment protection for it. Doesn't matter whether the speaker is a person or a "person".

In the present context, namely Wikipedia and Google and others publicly and in their own names urging opposition to SOPA, the distinction between speech and corruption seems worth emphasizing.

I don't remember whether it was Jefferson, Madison, or Hamilton who made the point that conflict between "special" interests is a pretty good way to serve the "general" interest. The MPAA is a special interest; Google is a special interest; I'm delighted to see them fighting with each other. That I can "see them" means the fight is public, open, UNcorrupt. That they are trying to persuade ME with their expensive speech, rather than spending the money to bribe Congressmen, is a good thing.

So my answer to Seb's headline question ("Is This Corruption?") is a definite no.

--TP

Well count, the Supreme Court has ruled that the our secret delight in the scoundrels is not in vain.

TP, I don't really disagree with your conclusion, although I fail to see where the Super PAC's, etc are any less publicly obvious special interests. I imagine, note that makes it my opinion, that few Americans are fooled as to which moneyed interest is behind them.

I would also guess that Google doesn't apply it's great resources to fight other special interests on behalf of me. It's no less disingenuous for them to frame the discussion in terms of protecting freedom of the internet than oil companies framing their arguments as being for the best interest of job creation. Both may have some truth but neither is their motivation.

I will add that if the oil companies start supporting candidates based on their views on internet freedom it could become confusing.

Well (oil well), oil companies do employ goons (some of them freelancing public officials) to suppress the freedom of the press (creating freedom form the press) instead. The constitution is silent on this kind of stuff since it only forbids government to do it.
BP did it in the Golf after Deepwater Horizon. They even hired actual policemen to keep reporters away from the clean-up so it looked official while it actually was not. Big companies in general love to go after critics and many of those are on the internet these days. And alleging abuse of copyrighted material is a common tool to silence the critics, if it is impossible/impractical/bad PR to do so based on substance.

I maintain hope that the satire of the next President of the United States of South Carolina and SuperPac Chairman will at least forestall the next American Civil War ...

http://digbysblog.blogspot.com/2012/01/stephen-on-trail.html

.... but I doubt it.

So, on the money=speech and buying politicians tip, is anyone else concerned that a single $5 million donation by a single rich individual turned someone from an also-ran into the Republican front runner in just a week? Is that how we want things to work in this country?

"but I wonder why Megawhatchamallacit, the service shut down by the Feds the other day can't have a business model along the lines of Apple, which has royalty payments built in to its distribution model, if I'm understanding how these things work, which I'm probably not."

I understand their business model to be roughly the same as that of your neighborhood u-store; They provide a metaphorical 'location' where data can be kept and retrieved. Like a u-store, they don't look at the data, to determine whether it's somebody's excess furniture, or equipment for a meth lab; They just provide the storage capacity and the ability to get at it if you've got the appropriate codes.

A lousy level of service is available to people who don't pay, a superior level of service to people who do pay, but Megaupload and similar outfits have neither knowledge nor interest in what you've stored there.

Some people use this to distribute pirated data, like movies. (Quite possibly most people. I really don't know.) Others use it to distribute large files, like, for instance, video of weddings, or software packages. (Ever try to email a 50mb file to somebody? Several somebodies? You run into these things called "attachment limits".)

In no case is Megaupload asserting ownership of the data, quite the contrary. They haven't the slightest clue what you've got stored with them. So how are they supposed to set up this system of royalty payments.

Really, it is exactly as though the feds found a meth lab in one room of the neighborhood u-store facility, declared the place to be a criminal enterprise, and burned it to the ground, old sofas and classic cars included, without giving anybody a chance to retrieve their property. Rather reminds me of the way the RIAA took down the entire MP3.com site, deleting a massive amount of non-infringing content. (Perhaps because a massive amount of non-infringing content consisted of indy bands that weren't giving the RIAA a cut.)

Due process looks nothing like this.

"So, on the money=speech and buying politicians tip, is anyone else concerned that a single $5 million donation by a single rich individual turned someone from an also-ran into the Republican front runner in just a week? Is that how we want things to work in this country?"

Bothers me not at all.

Did it escape your attention that said "Republican front runner" just got creamed in South Carolina by somebody who spent a fraction of his millions?

There's this fantasy on the part of campaign 'reformers' that money dictates the outcome of elections, that any schmuck can win if he's got enough money behind him. The truth is somewhat closer to the exact opposite: That LACK of money frequently dictates the outcome of elections, that the finest candidate alive can't win if he doesn't have enough money to be heard. But that, once the candidates are spending enough to be heard, extra exposure just gives the voters more opportunity to determine that you ARE a schmuck.

The media are particularly fond of being outraged over spending, because absent spending by other people, the only thing that's going to be heard is, ta da, what the media have to say. They want the candidates short on money, because then they can be kingmakers.

I think yesterday's primary demonstrated pretty conclusively just how little Romney's millions could buy him. So they bother me not at all.

Phil can correct me, Brett, but I think you have "that said 'Republican front runner'" confused with the other guy. I took Phil to mean that a single $5M contribution from one casino mogul turned Gingrich into a "front runner" practically overnight.

Actually, of course, what turned Newt into South Carolina's hearthrob was the spinelessness of the would-be "kingmakers" like Juan Williams and John King, to name but a few. Newt snarls at them, and they wilt like graveside flowers.

To the extent that the $5M from Newt's billionaire backer had an effect on the vote, it was for one of these two reasons:
1) The money bought TV ads promulgating lies, which SC voters swallowed because people in general have an amazing propensity to be persuaded by what they see on television; or
2) The money bought TV ads promulgating truths, which SC voters would not otherwise have known because people in general spend so much time watching television that they don't have the leisure to "consume" information from other channels like newspapers, political meetings, barroom bull sessions, back fence conversations, etc.

Either way, the thing I always come back to is that whether advertising contains Truth or Lies; whether it's paid for by big donors or small ones; whether it's "co-ordinated" with the candidate's campaign or not; if it persuades ordinary people then those ordinary people are, well, persuaded. Money would be a smaller issue in politics if the average American were less ... persuadable ... than he is.

You should keep in mind, BTW, that professional politicians like Newt and Mitt and Ron Paul and Barack Obama (not to mention their campaign staffers) all act as if they truly believe that money does influence elections. It takes an amateur politician like you or me to think up rationalizations for why it doesn't, really, not always, so what's the big whoop?

--TP

IMHO, some version of SOPA is necessary even if it doesn't accomplish much. What it might accomplish is pointing out to millions of people that they are stealing just as certainly as if they went next door and stole their neighbors car. Just because a massive criminal enterprise is difficult to stop doesn't mean we should all think it is ok.

[...]

The people who wrote the bill (movie studios etc.) certainly set their cause back two years by overreaching, but aside from the lack of at least minimal due process it contained mostly things you would have to do to have any impact.

People kvetch about the harshness, but it is similar to RICO in that it can clearly be abused, but much less can't possibly be effective.

I had an epiphany. You want to create a War On Online Piracy à la the War On Drugs. You freely admit that the measures you propose probably won't do much to actually curb the criminal behavior. You freely admit that they would be ripe for abuse, would lack due process protections, etc. You don't care though, because the important thing is that we don't appear to be tolerating this behavior, that we Send A Message with ever-harsher laws, and civil-rights and economic collateral damage be damned. Intent of legislation > effect of legislation. Because while the last round of rights-eroding laws obviously didn't send enough of a message (to say nothing of, ya know, actually rolling back online piracy), this time - this time - we'll show those impudent little hooligans what's what!

Ouch.

truth be told envy, I would like to replace the war on drugs with a war on online piracy. At least most people now believe that abusing drugs is a bad thing, not necessarily true when I was 16. It would be good if we limited the negative effects to the time it takes for people to think it is bad.

Tony P., you are so right. Money = speech, but speech = bs if, in fact, speech is bs. When speech makes sense, we should be persuaded by it. There is speech out there that makes sense.

Brett, thanks for the explanation.

Yes, I can understand that Megawe'reshockedIsayshockedwehadnoidea may have trouble developing a business model enabling royalty payments.

If you were a songwriter, Brett, and for all I know you are both Boyce AND Hart, would you consider the songs you write (and own) your property?

By the way, may I cover the song on a recording without consulting you?

Would you not, for the period in which copyright is in force, expect .... demand payment for use of your property?

The government, on behalf of the people, like all of us, is (are) grappling with a way to deal with this dilemma.

I suppose they could look to established search warrant law. Say I steal an original Bellmore painting and hide it in a locker in Grand Central Station. If I'm not mistaken, the government has figured out how to procure that property and evidence without blowing up Grand Central.

How can this precedent be applied to data (unauthorized digital images of Bellmore's shocking, ground-breaking work) uploaded to the cloud?

All of this might be complicated by the fact that Megaheyhecameinhereleftthepackageandthendisappearedwhyareyoubreakingmyballs may have some emails detailing their knowledge of exactly what their digital cloud lockers were storing, in some cases.

Now, if there are deeper currents at work, say you're embedding meth or the formula for creating meth in your paintings or digital images, I might go along with sustaining some damage to Grand Central beyond blowing the lock off one locker.

Don't worry, other drugs found in adjoining lockers will be ignored, since they would be decriminalized; I just have a problem with meth production.

This whole thing is a mess.

It seems to me Louis C.K. and Trent Reznor are showing the way through, but it will take Megamyhandsareclean and the government time to catch up.


Countme-In, if I wasn't clear, I have used Megaupload. They do not ask about the content you upload, if you encrypt it they have no way of knowing the content you have uploaded. They are in EXACTLY the same position as a u-store facility: Providing a service for storing they know not what, knowing that there are infringing uses, and non-infringing uses. Heck, the extent they differ, they have less knowledge of their customers and their doings, not more.

So long as we have copyright, I have no problem with reasonable enforcement mechanisms. I do have a problem with burning down the entire facility if you find one bay with a stolen car in it. Shutting down Megaupload does not merely effect the people running it. It effects the customers, and THEY have rights, too, including the right to be presumed innocent absent individualized evidence of guilt, of having THEIR IP rights respected. Suppose the only copy of your wedding photos had been stored there, for easy access to your relatives. Foolish, yes, but you'd still be entitled to be pissed off right now.

Let's be clear about this: Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others. It deserves less respect than property rights in physical objects, not more. And nobody would consider the physical equivalent of what was done with Megaupload to be even remotely reasonable.

And finally, I note that the 1st Amendment, adopted to alter the Constitution, postdates the copyright clause. That means, in my view, that any time the two conflict, the 1st amendment must prevail. Because that's what amendments do, they prevail over the status quo ante.

Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others.

Silly Brett! That reasoning is so last week. We now live in the brave new world of Golan v. Holder, where the Supremes swept aside such backward thinking with the astute observation that, honestly, ensuring that copyright holders profit off their existing works is sufficient to satisfy the Copyright Clause's "Progress of Science" aims, as they can then use the profits from existing copyrights to finance the creation of new ones, if they so choose. Or not, and just keep disseminating their old ones. As we all know, dissemination is just as good for progress as creation.

Sheesh. Encourage the creation of works. How quaint.

"In no case is Megaupload asserting ownership of the data, quite the contrary. They haven't the slightest clue what you've got stored with them. So how are they supposed to set up this system of royalty payments."

I suggest you read the indictment, which is about to make you look very, very silly for saying this. The evidence suggests that not only did they know in a great many cases what was being sent across its network, they were deliberately allowing and facilitating it for properties they knew to be under copyright, and profiting off of it.

"Suppose the only copy of your wedding photos had been stored there, for easy access to your relatives. Foolish, yes, but you'd still be entitled to be pissed off right now."

The phrase "the only copy" presupposes existence of an original that exists elsewhere.

"Let's be clear about this: Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others"

This is a pretty funny stance for a libertarian. All the others I know believe one bedrock thing: That all people have the right to benefit from the fruits of their own labor without having it stolen from them. Apparently that's no longer operative for creators of artistic works.

Just to bullet point it:

The indictment (see below for the full text in Scribd) refers to Megaupload’s offenses as the “Mega Conspiracy.” The company has been charged with five different counts concerning copyright infringement and money laundering. According to the indictment, Megaupload’s offenses include:

--Running Megavideo.com, which streams copyright infringed television shows and movies
--“Willfully reproduced and distributed” copyrighted content on its servers
--Offering money as an incentive to upload infringing content between the dates of Septmeber 2005 and July 2011
--Not terminating copyright offending accounts, as it states it can do in the Megaupload terms of service
--“Made no significant effort to identify users” of the site, uploaders of copyrighted content, or the content itself

Wait, did you just imply that the First Amendment *negated the copyright clause*?

"This is a pretty funny stance for a libertarian."

We're not all Galambosians, you know. In fact, practically none of us are, he's a running joke among us.

Megauploadvideo" was news to me. If they can prove counts 1 and 4, they've got a good case against them. 5 is like complaining that the phone company isn't listening to your calls. 2 and 3 are iffy.

And none of it justifies the fact that the feds didn't bother to distinguish infringing from non-infringing data before bringing the whole thing down. Customers of a u-store have rights, even if it turns out the owner himself was running a meth lab in one of the bays.

That means, in my view, that any time the two conflict, the 1st amendment must prevail.

OK, I am going to download Louis CK's Beacon Theater show for $5. Then I'm going to set up a website where folks can download it for $2. Which I will, of course, put in my pocket.

Because, hey, free speech!

Louis will come find me and personally kick my @ss. As well he should.

And then his lawyers will have my site shut down in a new york minute. As well they should.

The purpose of copyright is to encourage people to do creative work, by making it possible for them to earn a living from that work.

The current copyright law is asinine, and is skewed toward letting folks who hold lucrative catalogs of IP to continue to milk the cash cow long after the creators are dead and gone.

But the solution to that problem is not to eliminate copyright. The solution is to reinstate sane copyright duration.

There aren't many artists who really get that bent out of shape about individual people trading mp3s with each other. On the contrary, it's helpful to the artist to get their name out.

People distributing thousands of copies of their work, for a fee, is a different story.

Copyright is how a lot of people make a living. Those people typically spend more time and effort than you would likely imagine producing that work, and they are entitled, both naturally and by law, to the fruit of their labor.

They should get paid.

Shorter me:

The copyright issue has bugger-all to do with free speech.

The copyright issue has bugger-all to do with free speech.

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This

And none of it justifies the fact that the feds didn't bother to distinguish infringing from non-infringing data before bringing the whole thing down.

There's a certain point, there, but if you have precious data (in the form of pictures, etc) that you want to preserve, uploading them to a file-sharing site without having a separate backup is probably not your best move.

Consequences: learn from them.

I really doubt the DoJ is going to sift through the various terabytes of files and decide on a case-by-case basis what to return to whom, so I'd guess that issue is a dead one.

I'd also say the u-store-it analogy isn't such a good one, which isn't to say that I have a better one in mind.

5 is like complaining that the phone company isn't listening to your calls.

Under current law Megaupload had a legal obligation to identify and remove infringing material, and to perform takedowns when requested by rights holders. Your analogy is . . . inapposite.

"This is a pretty funny stance for a libertarian."

We're not all Galambosians, you know. In fact, practically none of us are, he's a running joke among us.

This doesn't answer the question. Do creators of artistic works have a right to the fruits of their labors, or not? If not, why not?

There's a certain point, there, but if you have precious data (in the form of pictures, etc) that you want to preserve, uploading them to a file-sharing site without having a separate backup is probably not your best move.

Most people, including big corporations that should know better, are stunningly ignorant when it comes to backups. I have a really tough time faulting random people who didn't realize that they should have stored their wedding photos or whatever somewhere besides Megaupload.

I really doubt the DoJ is going to sift through the various terabytes of files and decide on a case-by-case basis what to return to whom, so I'd guess that issue is a dead one.

There's no need to do that. Just open up the site for downloads only for a few weeks with a giant flashing banner saying that all downloads will be monitored so you should only download stuff that is legitimately yours. People who need their wedding photos can get them and pirates will go elsewhere since it is not worth the extra risk of downloading from a site that is literally controlled by the Feds.

I'd also say the u-store-it analogy isn't such a good one, which isn't to say that I have a better one in mind.

I like it, but I'd modify it so that the U-store in question is also providing warehousing services to drug dealers on the side. Now, would the average person notice shifty guys moving stuff in and out? Maybe, if you knew what to look for and showed up at the right time. But I'm guessing a lot of people wouldn't. I think it is really harder to show personal culpability for all or even many users of a site; users are just so clueless.

I don't know too much about the MegaUpload stuff, but when I read this, the idea of him being a guy who just happens to be running a U-store site seems to be less likely.

In the dramatic arrest scene, dozens of New Zealand police backed by helicopters swarmed the barricaded mansion of Megaupload founder Kim Dotcom to arrest him on Friday.

The report also says that the police had to cut their way through electronic locks to reach to Dotcom, who was hiding there with his shotgun.

The police said two firearms and several luxury cars were removed from Dotcom’s mansion, that include a Rolls Royce, a pink Cadillac and a Mercedes.

Maybe if he had some atlatls, he would have been in better shape...

the idea of him being a guy who just happens to be running a U-store site seems to be less likely.

I don't think the point of the U-store analogy is that the Megaupload owner is innocent; the point is what should non-infringing customers have expected. Should they have believed it was reasonable that the Feds would just show up and destroy EVERYTHING one day? I don't think so. If you're leaving stuff at a storage facility that is knowingly working with the mafia, I don't think it is fair to expect that everyone will know that. Do you?

I think the Megaupload owners were clearly encouraging infringement while also trying to be responsive to DMCA takedown requests (I've seen comments in tech forums where people mentioned that they found MegaUpload quite responsive to takedowns). It seems like they were trying to walk a fine line between using infringement to make money while hewing close enough to the letter of the law to avoid prosecution.

I have a really tough time faulting random people who didn't realize that they should have stored their wedding photos or whatever somewhere besides Megaupload.

I'm not saying that it's their fault so much as I am saying that it's not the job of the US government to make sure people get their data back.

Sometimes you do stupid things, and you wind up losing things you'd rather keep as a result.

Your idea of allowing downloads might have merit, but if law enforcement permits download terabytes of copyrighted material to a server where the local law enforcement is a great deal less pliable than that in NZ, then law enforcement has then failed to protect the owners of said material.

Can we get a ballpark percentage of the number of people who actually decided to store important things, not on some cloud storage site, but on a filesharing site, and then deleted all the originals from their local machines? Because I suspect we're talking about a trivial number of people, here.

I've seen comments in tech forums where people mentioned that they found MegaUpload quite responsive to takedowns

From a very good piece on just what happened to MU:

Indeed, the government points to numerous internal e-mails and chat logs from employees showing that they were aware of copyrighted material on the site and even shared it with each other. Because of this, the government says that the site does not qualify for a “safe harbor” of the kind that protected YouTube from Viacom's $1 billion lawsuit.

. . . Megaupload employees apparently knew how the site was being used. When making payments through its “uploader rewards” program, employees sometimes looked through the material in those accounts first. "10+ Full popular DVD rips (split files), a few small porn movies, some software with keygenerators (warez)," said one of these notes. (The DMCA does not provide a "safe harbor" to sites who have actual knowledge of infringing material and do nothing about it.)

In a 2008 chat, one employee noted that "we have a funny business... modern days [sic] pirates :)," to which the reply was, "we're not pirates, we're just providing shipping servies [sic] to pirates :)."

Employees send each other e-mails saying things like, “can u pls get me some links to the series called ‘Seinfeld’ from MU [Megaupload]," since some employees did have access to a private internal search engine.

Employees even allegedly uploaded content themselves, such as a BBC Earth episode uploaded in 2008.

Other messages appear to indicate that employees knew how important copyrighted content was to their business. Content owners had a specific number of takedown requests they could make each day; in 2009, for instance, Time Warner was allowed to use the abuse tool to remove 2,500 links per day. When the company requested an increase, one employee suggested that "we can afford to be cooperative at current growth levels"— implying that if growth had not been so robust, takedowns should be limited. Kim Dotcom approved an increase to 5,000 takedowns a day.

I'm not saying that it's their fault so much as I am saying that it's not the job of the US government to make sure people get their data back.

Sometimes you do stupid things, and you wind up losing things you'd rather keep as a result.

So, it is their fault because they were stupid?

Also, "I am saying that it's not the job of the US government to make sure people get their data back." Why not? The government has taken property of innocent people and has no obligation to give it back? Is it okay because it's just data and not, say, a car?

Your idea of allowing downloads might have merit, but if law enforcement permits download terabytes of copyrighted material to a server where the local law enforcement is a great deal less pliable than that in NZ, then law enforcement has then failed to protect the owners of said material.

I don't see a problem here. All of the copyright material is already widely available on the internet. All of that material is already on servers in very jurisdiction you can imagine. Law enforcement is not responsible for ensuring that zero copyright infringement ever occurs.

I'm really struck by the balance of harms here: the feds decided to force some ordinary citizens to lose irreplacable data in order to take steps that will do ABSOLUTELY NOTHING to reduce the availability of copyright material on the internet. That just seems...really dumb.

By that logic, they should not pursue ANY knowing infringers, because it's just data and almost surely exists somewhere else, too.

he feds decided to force some ordinary citizens to lose irreplacable data

Again, I'm going to need some ballpark numbers here.

Turb,

I am not so sure it is so dumb. I don't quibble that it would be reasonable to put the non bad material back up with a notice of time availability, seems logical and technically trivial.

But shutting down sites does change behavior. Napster comes to mind. Without delving into the business models of Spotify and iTunes in detail I think the business models have incorporated some protection for IP in that area.

Brett: And finally, I note that the 1st Amendment, adopted to alter the Constitution, postdates the copyright clause. That means, in my view, that any time the two conflict, the 1st amendment must prevail. Because that's what amendments do, they prevail over the status quo ante.

I'm not unsympathetic to this view, but my recollection is that SCOTUS generally considers the various "outs" under copyright law, such as fair use and parody, to clear up any constitutional first amendment concerns and also they seem to consider the first amendment (and maybe all of the Bill of Rights) to have been adopted at the same time as the Constitution (for reasons that escape me).

But shutting down sites does change behavior. Napster comes to mind.

I don't see why you think Napster proves anything. I mean, during Napster's heydey, it was extremely difficult to purchase high quality music online because record companies were not interested in making their catalogs available for sale. Even 'trying before you buy' was hard. Over time, Apple and other companies convinced the record labels to let them sell music on the internet and lots of money was made. So, after Napster was shutdown there was a huge rise in the number of people legally purchasing music online....was that because Napster was shutdown or was that because record companies started allowing people to sell their music online after Napster died?

Without delving into the business models of Spotify and iTunes in detail I think the business models have incorporated some protection for IP in that area.

I don't see your point here; iTunes sells tons of non-DRM protected music. But that doesn't matter because there always have been and always will be tons of local file sharing. People used to copy tapes back in the day; now they set up a server and share logins.

By that logic, they should not pursue ANY knowing infringers, because it's just data and almost surely exists somewhere else, too.

No, that's not true.

I'm not saying the Feds shouldn't put sites like MegaUpload out of business. I'm just saying they should offer people a grace period to retrieve their own stuff before killing the site for good.

And I think sites like MegaUpload are different than, say, the Pirate Bay; MegaUpload marketed itself to lots of ordinary people and had an easy to use interface. That makes a difference.

Again, I'm going to need some ballpark numbers here.

Alas, I don't have any. Given that the Feds have the data and aren't talking, the best we could ever get would be anecdotes.

Like I said, the best we can do is anecdotes, but if you want anecdotes, you can find some here.

Well, at least one of those people (@pattysplayhouse) is a complete idiot: "They shut down #Megaupload. I had backup files of all my personal images on that site." If they were backups, you still have the originals.

The rest just learned a valuable lesson, not only applicable in this situation but in any case in which you're storing data non-locally: KEEP YOUR ORIGINAL FILES. Hard drives fail, servers fail, all kinds of things happen.

If you're trusting some site you don't have control of to keep your data safe forever, you are a great big dummy, whether its a site that happens to be involved in IP controversies or not.

For pete's sake, one of those people even notes that she was sharing work projects. Unless she's a freelancer and working from home, I bet her employer would take a dim view of storing everything offsite and not keeping local copies.

We've just learned a valuable lesson: Phil doesn't care about collateral damage when the feds enforce the rights of huge corporations.

No, I'm not convinced that there was any significant collateral damage, and any that there was was a result from the damagees own stupidity. Aren't you libertarians big fans of forcing stupid people to face the consequences of their own stupidity? Or does that only count for poor people? I mean, can you at least pretend to have a consistent political philosophy for two seconds?

You also haven't answered my questions, Bellmore: Do the authors of creative works have a right to profit from their endeavors, or not? Is obtaining material you know to be under legitimate copyright without paying for it robbing them, or not? Simple one word answers will suffice.

(Keep in mind that outside the confines of copyright law there are contract issues dealing with exclusivity of distribution as well. I know you believe in contracts, so long as they don't involve labor unions.)

Phil: Is obtaining material you know to be under legitimate copyright without paying for it robbing them, or not?

This kind of gets to the issue of the unique status of IP rights, particular in a digital age. If I steal an actual CD from you, clearly I've robbed you, but have I robbed the artist? However, if I make a copy of friend's CD, I don't think I've robbed them, but have I robbed the artist? Does it depend on whether I would have otherwise paid for the CD (or, e.g., iTunes download) if I couldn't get it for "free"?

This last point is why I find all these estimates of the cost of piracy to be wildly overblown. Would some of the people downloading copyrighted content from Megaupload have purchased the same content were it not available on the site? Of course, but would all of them have so paid? Of course not, and yet AFAICT the MPAA/RIAA calculations of the "cost" of piracy assumes that everyone downloading would have instead purchased (though maybe not) and then multiplies that by the retail cost of the good.

Hard drives fail, servers fail, all kinds of things happen.

I agree: everyone who has data should think long and hard about a backup strategy. Ideally, they should keep multiple backups, including at least one off-site, and they should attempt regular test restores from a blank system.

But we need to be realistic. Most people aren't going to do that. Heck, most companies that I've seen don't even do that. I've watched smart people, including doctors and lawyers and developers screw this up. Repeatedly. Look, if everyone, even experts, regularly fails at this, can we really say that a bunch of non-experts who failed were "stupid"?

If you're trusting some site you don't have control of to keep your data safe forever, you are a great big dummy

This seems nuts. Unless you're a company big enough to have multiple offices, you're going to have to entrust your data to a site you don't control in order to do offsite backup. I really can't fault anyone for trusting say, Amazon S3 or Crashplan or Backblaze with their offsite backups.

Oh, don't get me wrong, Ugh - I don't agree for a moment with the RIAA/MPAA estimates of piracy costs. I think they're so bad, they give "ludicrous" a bad name. I'm trying to pin Bellmore down on Copyright is not a natural right. It is an artificial monopoly created purely for the benefit encouraging the creation of works is supposed to provide others, which appears to imply that, uniquely among all human beings, content creators do not deserve to be compensated for their labor.

...which appears to imply that, uniquely among all human beings, content creators do not deserve to be compensated for their labor.

Jumping in here, I've got to say that this seems like kind of an unfair question.

I mean, I don't know about Brett, but, while I might say something like "'content creators' deserve to be compensated fairly for the labor which provides value to society".

But that is very different from something like "'content creators' deserve to receive compensation through a particular artificial monopoly scheme."[1]


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[1]: The footnote: We need to be particularly careful of status quo bias. "Content creators" is a very sloppy term. Almost by definition, who is and isn't a "content creator" -- what kind of creative works are lucrative, popular and respected and thus believed to deserve reward -- is completely embedded within the structure of the artificial incentives which society creates beforehand.

Here in this universe, you say, "Well of course you're not a 'content creator' who deserves to be rewarded just because you composed a bad poem while on the toilet".

But over in the other universe, a butterfly flapped it's wings slightly harder in the 3rd century BCE. Later, early in the 13th century, the 10th Imperator of Britaspania, Ming the Wise, laid the foundation for the modern Western system in which creative work is rewarded on a fixed basis from a taxpayer funded pool. People over there are currently vigorously denouncing the suggestion by certain radicals that paying $0.50 per blog comment is becoming an increasingly cumbersome and untenable system.

"Are you saying that, uniquely among all human beings, professional blog commenters do not deserve to be compensated for their labor?", they cry.

Oops, that second paragraph would probably read better as:

I don't know about Brett, but, while I might say something like "'content creators' deserve to be compensated fairly for the labor which provides value to society," that is very different from something like "'content creators' deserve to receive compensation through a particular artificial monopoly scheme."

Also.[2]

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[2]: Ming initially did so at the behest of his sister, who had asked him to help her pay for her invasion of Sicily by channeling some funds from the treasury toward her husband, the Imperial brother-in-law, a rather bad poet who usually did his best work while visiting the facilities.

My own bad poetry is for free until I say otherwise. Just don't try to make money from it or claim it as your own. All legal trouble due to content is also your own problem. ;-)

þađ er Cþul(h)u
þursa drottnari
Skrímsli stjörnur
Skelfing er manna
Dauður en dreymandi
Sinn dagur mun koma
Rikir brjálædi
En birta er ekki

(that may also contain bad grammar)

Fashion Tips

Would not Cthulhu look just great in pink
And/Or with a wig to cover his bald head?
He stares at stars but could he not instead
Become a star himself? What do you think?

Aren't Deep Ones sexy? Could they drop the stink
We'd stand in queue/line to get/have them in our bed
A decent fragrance and some lipstick red
Work well together (plus a stole/coat of mink)

No girl would shun a night-gaunt's call to dance
Wore he a tux and polish on his nails
Ghouls are so nice, if you give them a chance

Let shoggoths shape their slime in ponytails
Let pretty* shoes their pseudopods enhance
They are not fiends because their dress sense fails

*In order to avoid product placement, I did not put some brand name here

Don't try to babelfish (or google translate) that. The results are quite off (e.g. turning 'enemy he is of men' into 'horror is a human right', also getting the cases wrong).

Uh oh. Giving away poetry for free?

Don't let Big Poetry find out about that. Under the new ENSALADA act, the PVAA (Poetry and Verse Association of Amerigonia) is authorized to send government revenue men to your door and force you to sign and deposit your royalty check at dagger point. I've heard it's very traumatic.

I might say something like "'content creators' deserve to be compensated fairly for the labor which provides value to society".

Whether it provides value to society or not kind of answers itself. If someone will pay money for it, it's adding value to somebody's world, somehow.

Musicians, writers, inventors, research scientists, there is a very long list of people who derive some more or less significant part of their income from copyrighted or patented work.

Those people would not get paid for that work without the copyright or patent.

The list of people making money from somebody's original creative work should include the original creator.

And "content creator" is not that hard of a party to identify.

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