Deciding Which Worship Copies Are Illegal Would Hamstring Government
judicial economy would still demand that the government stay out of worship copyright disputes.
Which is why, for the last 250 years, government always has stayed out of such disputes.
there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. ...the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself...- USC17 107 notes
Ancient maxims of law admissible in court against a worship-music copyright claim:
- That is the best system of law which confides as little as possible to the discretion of the judge.
- That law is the best which leaves the least discretion to the judge; and this is an advantage which results from certainty.
- He is the best judge who relies as little as possible on his own discretion.
- Whenever there is a doubt between liberty and slavery, the decision must be in favor of liberty.
- Hasty justice is the step-mother of misfortune
- A judge is to expound, not to make, the law.
- It is the duty of a judge to declare the law, not to enact the law or make it.
- Definite, legal conclusions cannot be arrived at upon hypothetical averments.
- Everyone is presumed to be innocent until his guilt is established beyond a reasonable doubt.
to make accommodation between the religious action and an exercise of state authority is a particularly delicate task . . . because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing . . . prosecution.- U.S. Supreme Court; Braunfeld v. Brown, 366 U.S. 599, 605 (1961),
One reason the issue of small-scale, noncommercial intra-church copying would be dismissed for want of jurisdiction (and/or in the interest of judicial economy) is that it would bog down the courts in a quagmire of spaghetti-law-code, like a knotted-shoelace nightmare, over every 10 cent photocopy a church wanted to make.
Thus a well-meaning desire to get the church to "obey the government" would rob the government's valuable time, for no ultimate purpose.
Church autonomy generally implicates the Free Exercise, Establishment, and Speech Clauses, as well as the constitutional right of association, therefore qualifying for the hybrid rights exception.
(See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (EEOCβs attempt to apply Title VII in case of canon law professor was a βhybridβ case under Smith because it implicated both Free Exercise and Establishment Clauses).)
The Court applies strict scrutiny to free exercise claims in contexts that lend themselves to individualized governmental decision making, an exception that the Court said explained its earlier unemployment compensation decisions. (see Smith, 494 U.S. at 884.)
Thus, attacking a church's bona-fide, noncommercial, worship-oriented free exercise claim (to be able to copy a piece of sheet music with impunity) is a quintessential example of a plea for individualized government decision making - exactly the kind of costly quagmire of legal quicksand that would breed endless appeals and hung juries, and would harm government more than it helps the copyright owner.
(See The Religious Freedom Restoration Act (βRFRAβ), Pub. L. No. 103-141, 107 Stat. 1488, codified at 42 U.S.C. Β§2000bb et seq. (1994))
See "FREEDOM TO BE A CHURCH", in THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 3:387.]
