[linux-elitists] [declan@well.com: FC: Is Rep. Boucher's online-music licensing bill constitutional?]

Rick Bradley roundeye@roundeye.net
Mon Sep 10 18:34:22 PDT 2001

* Karsten M. Self (kmself@ix.netcom.com) [010910 19:22]:
> Read.

An interesting read.  

As an aside, I wonder if arguing for more treatment of IP as
"property" is a good thing.  Something tells me the courts need little
additional reinforcement of the IP/property + copying/theft analogies,
even though they break down under rational examination (which there is
arguably little of these days in the Circuits).

The argument in the section of the paper labelled "3. If there is a
taking, is it a taking for public use?" is weak and confusing:  The
statement that "[p]ublic use will be found as long as the taking has
some conceivable public character" strikes me as being overly broad
and likely indefensible.  I'm not convinced the author even believes
the argument in this section (and seems to even be arguing
contradicting points).

I would like to be excited by the notion that compulsory licensing is
a 5th Amendment taking but I'm left unconvinced whether the argument
is tight, and undecided as to whether the world is a better place with
or without compulsory licensing or its finding to be a "taking".

 Mostly useless pseudo-random number: 529
 Rick Bradley - http://xns.org/=rick@eastcore.net  (85 F)

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