Thursday, January 19, 2012

SOPA And PIPA: Crushed By The "Tubes" -- Yes Merck Schering-Plough, Your Corporate Logos Have Always Been Subject To "Fair Use" Rules

I am fairly certain that, as most-recently drafted, both of these bills (SOPA, and PIPA -- see links in quoted text) would have ultimately been held unconstitutional insofar as they purported to prohibit citizens (i.e., natural persons -- especially those not deriving any profit therefrom) from making incidental use of a corporation's identity, marks, brands, logos or other intellectual property -- when factually criticizing them (especially for the purpose of accurately identifying the maker or owner), or commenting upon matters of public concern.

Clearly, that right belongs to the people -- in our first amendment jurisprudence. As you can see (with just a casual glance around the place), my commentary touches on matters of significant public concern, and in doing so, makes liberal use of carefully-modified -- but still plainly identifiable -- corporate identity intellectual property. That is plainly my first amendment right. Thus, for 24 hours through this morning, this site carried the masthead banner at right, in solidarity -- click to enlarge.

While I think the issue is largely decided, it is nice to know that no one will have to litigate the above issue, to establish this freeedom, for the rest of us -- after yesterday. Per The New York Times, this morning:

. . . .Wednesday [1.18.12], this formidable old guard was forced to make way for the new as Web powerhouses backed by Internet activists rallied opposition to the legislation through Internet blackouts and cascading criticism, sending an unmistakable message to lawmakers grappling with new media issues: Don’t mess with the Internet.

As a result, the legislative battle over two once-obscure bills to combat the piracy of American movies, music, books and writing on the World Wide Web may prove to be a turning point for the way business is done in Washington. It represented a moment when the new economy rose up against the old.. . . .

Legislation that just weeks ago had overwhelming bipartisan support and had provoked little scrutiny generated a grass-roots coalition on the left and the right. Wikipedia made its English-language content unavailable, replaced with a warning: “Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet.” Visitors to Reddit found the site offline in protest. Google’s home page was scarred by a black swatch that covered the search engine’s label.

Phone calls and e-mail messages poured in to Congressional offices against the Stop Online Piracy Act in the House and the Protect I.P. Act in the Senate. One by one, prominent backers of the bills dropped off. . . .

One ancillary point I've not seen others make yet is this:

After Citizens United (the Super-PAC-enabling Supreme Court decision) was handed-down, and corporations were effectively handed affirmative, full-fledged first amendment political influencing rights, a logical and necessary implication will be that the same corporations must now also live by the limits of the first amendment jurisprudence, as well: these very-public "people" (business entities) must fairly be subject to commentary and criticism, even couched as fact rather than opinion -- without a right to complain at law -- except in the limited circumstance of "actual malice" falsity, or "reckless disregard" factual errors.

Buckle-up, and pucker-up, ole' Buttercup.

1 comment:

Condor said...

An new measure, introduced yesterday by Rep. Darrell Issa (R, CA), is far more sensibly targeted (it only covers non-domestic websites whose "primary purpose" is infringing legitimate US IP rights); importantly, the Issa bill contains the following savings clause:


Nothing in this section shall be construed to affect, limit, or deny application of any limitation, exception, or defense to copyright or trademark causes of action, including fair use and other exceptions, limitations, or defenses available to any person pursuant to any other Federal or State law. . . .

And so ends the current threat to free and open debate and discussion on the 'tubes.