reply to post by mnmcandiez
The Supreme Court did not "legalize"downloading music simply because they declined to hear ASCAP's case. By declining to hear the case, this means
that until the SCOTUS does hear the case, and only if upon hearing the case they reverse the ruling made by "an appeals court in New York", then
that ruling stands. Presumably, since ASCAP was appealing to the Supreme Court, this "appeals court in New York" that the article you linked calls
it must be the 2nd Circuit Court of Appeals. The article you linked does not name the case that has been ruled upon, so without that information, we
can only assume it was the 2nd Circuit that ruled that downloading music constituted a public performance under federal copyright law.
However, this does not mean that - assuming it is true that it was the 2nd Circuit - they "legalized" downloading music. Courts do not "legalize"
behavior. Neither does Congress, or other legislatures, for that matter. Under the principles of our Constitutional government, whatever is legal
cannot be unlawful. Without having read the ruling so sloppily referenced in that article you linked, prudence and valor would dictate we give the
2nd Circuit the benefit of the doubt and assume their ruling is founded upon that principle: What is unlawful cannot be made legal. Under this
mandate, courts then look at cases such as this and consider the merits of the arguments before them.
This point, however, is somewhat moot, since whatever court actually made this ruling, it is not binding in regions where other Circuit Court of
Appeals have jurisdiction. The State of California, for example, is not bound by the "New York" ruling, although the 9th Circuit and lower courts
can look to that ruling for authority. Whatever reason the "New York" court applied, if the 9th Circuit disagrees, they have the authority to
render a different ruling, even if it is in direct opposition to the "New York" ruling. If the issue is argued in several regions across the
country, creating a situation where several Circuit Court of Appeals have rendered conflicting rulings, you can bet your bottom dollar that the
Supreme Court will stop declining to look at this issue.
If and when the Supreme Court does look at the issue and renders a definitive ruling, that ruling does not - as some academics would have you believe
- "make law", or "legalize" or "make illegal". Whatever the ruling, if and when that time comes, that the Supreme Court makes in this matter,
they are Constitutionally mandated to uphold the law. It is the Supreme Courts job to view the issue in light of that mandate: To uphold the law.
What is the law?
The law is a collective body of work that recognizes the unalienable rights of the individual.
What is a right?
That action that is done in the pursuance of life, liberty, and happiness. It is a right to defend ones life, property, and the lives of others in
need of that defense. Outside of these rights, what else is done that causes no harm, is done by right.
Does downloading music online without any compensation for that music cause harm? If that downloaded music is music that businesses are trying to
sell in the market place, then the downloading without regard for the cost of producing and distributing that music is most assuredly causing harm.
Those who have been harmed have a right to remedy. To recompense.
The law does not fall prey to bias. It has no distaste for economy, and profits and loss. It cares not whether one is a rich man, poor man, beggar
man, thief. Doctor, lawyer, Indian, Chief. If downloading "free" music is causing harm that is not done out of defense of life or property, then
that action is unlawful.
That is my reasoning and determination. Whatever the courts will rule remains to be seen.