the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is nonexistent or purely speculative.Bohannan goes on to claim that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. US courts have been unpersuaded by that claim and theorists familiar with natual law justifications of intellectual property might be wary about worshipping the golden calf of free speech.
Continental notions of intellectual property as one embodiment of human rights are, however, dismissed by Molly Land in her 2008 submission Intellectual Property Rights and the Right to Participate in Cultural Life.
She comments that
Although many contend that human rights law is a justification for intellectual property rights, precisely the opposite is true. Human rights law is far more a limit on intellectual property rights than a rationale for such regimes. In a variety of ways, human rights law requires states to take specific, concrete steps to limit the effects of intellectual property rights in order to protect international human rights. This powerful and emancipatory dimension of human rights law has unfortunately been overshadowed by those who claim human rights as a basis for granting exclusive rights. The U.N. Committee on Economic, Social, and Cultural Rights – the body created to monitor state compliance with the terms of an international treaty called the International Covenant on Economic, Social, and Cultural Rights – is in the process of drafting a General Comment that will interpret the "right to take part in cultural life", a right protected under Article 15(1)(a) of the treaty. The submission .... was designed to provide the Committee with an overview of some of the ways in which intellectual property rights can affect this right and what states may be required to do to protect the ability of individuals to participate in cultural life.'Oils ain't oils'
There is a more robust stance on the sacredness, or otherwise, of speech in a complaint highlighted by Christine Corcos. Her blog notes that the UK Advertising Standards Authority has upheld a complaint by the British Humanist Association (BHA) and two members of the public regarding an advertisement for the Universal Church of the Kingdom of God (UCKG) that featured claims about "Blessed Oil".
Those claims were the usual hocus pocus, not that much different to several hundred of the emails that appear in my in-box every day, offering to make me more beautiful, enhance parts of my body that are working quite well (thanks very much), gain me a marvellous job with the Vladivostok mafiya or merely turn me into a tiger in bed. The BHA was critical of the implication in the UCKG ad that anointing with 'Blessed Oil' was instrumental in a child's recovery ("He went into a coma, his heart stopped and both his lungs collapsed. Doctors and specialists expected him to die.")
Scary Stuff
Is honking your horn protected speech? Corcos also notes State of Minnesota v. Gary Ross Weidner, 2009 Minn. App. Unpub.
Some rumors should rest untested. Four teenage girls aimlessly driving in Windom ten days before Halloween recalled rumors about a "scary house" that, "if you honked your horn at the property," the crazy owner "would come out and shoot at you." The girls drove a car equipped with the requisite horn and had a bit more curiosity than caution. So when nothing happened after they drove by once, honking, they just had to try again. This seemed reasonable because one of the girls remembered that the specific rumor was that "if you came back around the second time, they would shoot at you." As they made their second pass, the teenagers heard a gunshot, one of them yelled, "He shot at us!" and all the girls screamed in unison. The young driver panicked, immediately accelerated, and drove the car out-of-control into a ditch where it rolled onto its side. Police arrived six minutes later to help the uninjured-but-terrified teenagers, and officers found a bullet lodged in the car's door. The owner of the "scary house," Gary Weidner, now appeals his conviction of four counts of second-degree assault that followed a bench trial in Cottonwood County. Weidner argues that his convictions should be reversed for two reasons. He contends that the district court abused its discretion by admitting irrelevant and unduly prejudicial evidence of his past conduct and that the evidence introduced at trial is insufficient to sustain his convictions. Because we conclude that it was not unduly prejudicial to admit the evidence of Weidner's prior conduct and because sufficient evidence supports the convictions, we affirm.There is scary stuff in Matthew Feldman's opinion piece 'Broadband Terrorism: A new face of fascism', which claims that
virtual fascism is to contemporary British society what Oswald Mosely's East End marches were to the mid-1930s: threatening demonstrations against the spirit of democracy and the reality of multicultural society. The latest permutations of fascist hatred no longer march through Cable Street in serried ranks of militants, but swarm through cables in gigabytes of information.In discussing 'Hate 2.0' Feldman comments that
Policy needs to evolve still further to overtake this new phenomenon. There are policies to combat paedophiles' online activities, but not yet for those inciting racial and religious hatred. Currently, the web hosts an array of extremist materials capable of turning disaffected, lone racists into politicised terrorists in a manner inconceivable only fifteen years ago. In the largely faceless yet globally-visible world of 'broadband terrorism', incitements to hatred can now be advanced by anyone capable of running Wordpress. As the nail-bomber David Copeland already showed a decade ago, armed with no more than a search engine, a seemingly ineffectual 'loner' can now turn a suburban bed-sit into an individual terrorist 'cell'. A few judicious mouse-clicks enable the assembly of everything from radical right doctrines to bombs. Of course, this is true of all ideological revolutionaries, not only neo-fascists. But the far-right is well ahead of the online curve when it comes to peddling revolutionary politics.Patents
SSRN has meanwhile released 'Patents as Administrative Acts: Patent Decisions for Administrative Review' by Chris Dent, which appeared in (2008) 30(4) Sydney Law Review 691-714.
Currently, challenges to decisions in the Australian patent system may be heard in either the Patent Office, if the challenge comes before the grant of the patent, or in the Federal Court, if a granted patent is challenged. This is the case despite the grant decision being an administrative decision. This Paper considers the decisions made as part of the patent system - including the decision by a patent examiner to grant a patent and the adjudicatory decisions of opposition and revocation - and explores the potential for the challenges to the grant decision to be subject to administrative review. In particular, the Paper raises the possibility of examiners’ decisions being subject to merits review in the Administrative Appeals Tribunal and judicial review before the Federal Court.
