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Comment by ensignavenger | Hacker News Reader

"I have sole control over what is done with that which I create."

Actually, the US Constitution only allows for limited control, not unlimited control. The Constitution requires Fair Use exceptions to your control of your created works.

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While your conclusion is correct, isn't it other later case law that permitted Fair Use? I don't think that is actually in the constitution.

Actually, it is the freedom of speech clause in the First Amendment that gives fair use rights, as interpreted by the courts. It could even be argued by a future court that the First Amendment invalidates copyright altogether; it wouldn't be the first time a court had changed direction like that.

That is a less extreme change than that from Plessy vs Ferguson to Brown vs the Board of Education, for example. And a good case can be made for freedom of speech trumping copyright; the Constitutional argument for copyright is a practical one for "encouraging" the advance of arts and sciences; eternal copyright has already undercut that argument.

A week or two ago, someone referenced this article by David McGowan, a Law Professor at the University of Minnesota titled "Why The First Amendment Cannot Dictate Copyright Policy": http://lawreview.law.pitt.edu/issues/65/65.2/McGowan.pdf

It's not in the constitution, but it is codified in law (Copyright Act of 1976, I think). But it was common law for a long time before that.

I meant to respond sooner. I think you are correct that Fair Use originally developed through case law, (owing to the First Amendment). It was later codified. The First Amendment is part of the Constitution, and take precedence over the Articles, thus Fair Use is necessary to reconcile copyright with the First Amendment (Which is part of the Constitution).

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