Here's another wrinkle I just thought of, and apparently which the attorneys representing photographer Frederick Allen hadn't thought of, either.

A copyright is an interest in tangible personal property. Now, I've always maintained that the Sup. Ct. was wrong to start applying principles stated in the Bill of Rights to the states. The Bill of Rights clearly, by its own terms, limits its proscriptions to Congress; it only lists things that Congress (and by extension, the United States) is prohibited from doing.

But then the Court created the fiction that "due process" under the Fourteenth Amendment doesn't guarantee procedural rights at all, but only protects substantive interests by the magic of "judicial interpretation". (When you use words in a way that is inconsistent with their true meaning, that's "interpretation".) Then, of course, they had to make up a list of substantive "rights" that applied to the states, and at the same time, relaxed the prohibitions on Congress. They did that in part by changing "Congress shall not infringe" to "rights are subject to reasonable regulation". Seems to me the people have already decided what constitutes "reasonable regulation" when they said "not only shall you not do it, but you can't even infringe around the edges". See, the logical end of my point of view, using the Second Amendment as an example, is that the United States has absolutely nothing to say about what kinds of arms one may bear, or whether or when he might bear arms. But if Illinois wants to completely prohibit weapons of any kind, that's a matter for the citizens of Illinois to determine, subject to their own constitution, and the U.S. has no say in that regard, either. Similarly, some states used to have official religions. Perfectly acceptable under my reading of the Constitution, although the U.S. has no room to speak in that area, either.

Well, the Sup. Ct. has not been interested in my opinion, so, taking it the way they've specified it, the entire Bill of Rights now applies to the states under the "due process clause" (which now has nothing to do with process, remember), unless and until the Sup. Ct. says specifically that one or more don't apply. Heller v. DC.

So here's the kicker: the "takings" clause of the Fifth Amendment prohibits Congress (and now by virtue of "substantive due process, the states as well) from taking private property in any form from any person without due process of law. That includes interests in personal property. When N.C. appropriated copyrighted images for public purposes, it took property without compensation in violation of the Fifth Amendment.

Article 2, Section 2, of the Constitution provides federal courts jurisdiction as follows:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-to all cases affecting ambassadors, other public ministers and consuls;-to all cases of admiralty and maritime jurisdiction;-to controversies to which the United States shall be a party;-to controversies between two or more states;-between a state and citizens of another state; -between citizens of different states; -between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

Well, copyright is a matter of treaty obligation (the Berne Convention, ratified in the U.S. in 1989), and a treaty once ratified by the U.S. is the law, pre-empted only by the Constitution itself. That treaty says that the copyright owner has the exclusive right to make or display copies of the work. It makes no exceptions for governmental actors' appropriation of the work for their own use.

Thus, N.C. violated an international treaty, by unlawfully seizing personal property without compensation in violation of Frederick Allen's "substantive due process rights" under the Fourteenth Amendment, because N.C. violated his rights under the Fifth Amendment. Unfortunately, it's too late for Frederick Allen, since he's now barred by the judicial precept called, "res judicata" ("something already decided"), an English common law precept that has been warped, again by "judicial interpretation", to preclude initiation of a second suit by one party against the same opposing party (or anyone related to that party) from filing another suit involving the same subject matter. In other words, you have to get it right the first time, there's no second bite at the apple.

I still think that N.C. is in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), but then I'd always thought it was a bunch of racketeers running that state already.

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Last edited by Unregistered User; 10-06-2020 at 09:18 AM.

[gatorguy]

Here's another wrinkle I just thought of, and apparently which the attorneys representing photographer Frederick Allen hadn't thought of, either.

A copyright is an interest in tangible personal property.

A copyright is intangible property. Would that change your argument at all?

[RGlasel]

Would that change your argument at all?

Based on this:

I still think that N.C. is in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), but then I'd always thought it was a bunch of racketeers running that state already.

probably not.

My philosophical take on this is that there is always going to be tension between whatever entity represents the "common good" and individuals who feel entitled to make the "common good" support their individual, private interests. I don't think I am as extreme in this viewpoint as Thomas Hobbes, but human beings still need to submit to a higher authority than themselves from time to time in their dealings with each other, or life will be "nasty, brutish and short." You can't have individuals staking claims to public goods (both tangible and intangible) in order to gain some advantage, however insignificant, over the rest of the public.

A copyright is intangible property. Would that change your argument at all?

nope. But here's another potential difficulty: "property" is traditionally defined by state law, since all property is strictly local - in the case of intangible personalty, the "locus" of the "res" (the place where the property is located) inheres in the owner, so its status could change as he travels from state to state. Also, where there is a federal interest, such as with a copyright, the property right is defined somewhat, or qualified, by federal law, and in particular, judicial decisions. But it's a hybrid sort of thing.

I once levied on a few patents owned by a technology company against whom my clients had been awarded judgment, and which was not interested in paying up. Once I filed the papers to sell their patents outside the courthouse, they paid up right quick. If a patent weren't a species of property, I couldn't have done that. I had another case, long ago and far away, in which I attempted to levy on a domain name - first case of that kind anywhere, ever - but the court ruled that a domain name was not a property interest but a contractual interest in future performance and thus not subject to levy. (Dorer v. Arel, 60 F. Supp. 2d 558 (1999).) (I still think the domain name is a species of property, since it can be bought and sold; the court got confused into thinking the hosting contract and the domain name were one and the same, and came to the wrong conclusion in my opinion. I also suspect there's some element of wanting to "protect commerce" in the court's ruling.)

Based on this: probably not.

My philosophical take on this is that there is always going to be tension between whatever entity represents the "common good" and individuals who feel entitled to make the "common good" support their individual, private interests. I don't think I am as extreme in this viewpoint as Thomas Hobbes, but human beings still need to submit to a higher authority than themselves from time to time in their dealings with each other, or life will be "nasty, brutish and short." You can't have individuals staking claims to public goods (both tangible and intangible) in order to gain some advantage, however insignificant, over the rest of the public.

Saskatoon? Clearly people who live in the Frozen North have to become well-educated, since there's little else to do when the snow is up to the roof, eh? (Leaving reproductive issues, consumption of alcoholic beverages, and other forms of amusement out of the discussion.)

I've been thinking a lot, lately, about precisely that issue. I've come to the conclusion that studies of primate behavior generally have been very instructive, as is the movie, "The Seven Samurai" and its English-language "do-over", "The Magnificent Seven". It seems Jesus was right when he said, "the poor you shall have with you always", and "the meek shall inherit the Earth". There's always an "alpha" animal, or in sixth-grade society, the "bully"; or in the case of the movies, bandits. In every case, the "social contract" involves giving power and resources to the bully, in exchange for protection from other bullies and some measure of social and economic co-ordination and security. So far, I think Hobbes and I are on the same page.

The problem is that exemplified by the movies: the poor peasant villagers are ravaged by parasitic bandits who don't do anything for the peasants at all, so they hire some different bandits to eliminate the threat of the parasitic bandits. If the social contract is too lopsided, the peasants will revolt. But the solution is always new and different bandits.

The U.S. Constitutional system, as originally devised, was an attempt to put the villagers in charge, but in a way that protected them from themselves (democracy equals mob rule). It's a sort of balance between Locke and Hobbes, I reckon. But my point is that it's still bandits, parasites. Our choice is between bandits who work for us, as opposed to those who work only for themselves. We're having a "Presidential Campaign" in the U.S. in which we have to decide which is the bigger bully, who can protect us against the outside bullies, but will also put our interests at least on the same plane as his own. The peasants had better be fairly cynical and suspicious of all the candidates, but they're idealistic, naive, and engage in wishful thinking, and thus easily swayed by cow-pie rhetoric. Franklin was right.