[DMCA-Activists] More on: Why No Link of 1A + Limited Times Args in Eldred?

[Seth Johnson]

(Seth Finklestein gives his take on why Lessig didn't link
the First Amendment and Limited Times arguments in Eldred
vs. Ashcroft.  From DVD Discussion list.  -- Seth)


-------- Original Message --------
Date: Thu, 10 Oct 2002 19:10:31 -0400
From: Seth Finkelstein <address@hidden>
To: address@hidden

Seth Johnson wrote:
> Yeah!  I really, really want to understand this, and I can't.  What
> is going on here? Are certain advocates really afraid of doing
> First Amendment arguments?  I really don't understand why Lessig
> didn't make the play.

        I'm not a lawyer, but I think the big problem is that
however stirring First Amendment arguments may be to us,
they haven't done very well in the courts recently here.
Take a look at the "First Amendment" discussion section in 
http://cyber.law.harvard.edu/cc/dcaopinion.html :

A. First Amendment

The First Amendment aspect of the plaintiffs' complaint
attacks the CTEA not only in its application to subsisting
copyrights but also insofar as it extends the terms of
copyrights for works yet to be created. ...

2. The merits

The decisions of the Supreme Court in Harper & Row
Publishers Inc. v. Nation Enters., 471 U.S. 539 (1985), and
of this court in United Video, Inc. v. FCC, 890 F.2d 1173
(1989), stand as insuperable bars to plaintiffs' first
amendment theory. In Harper & Row the Court held that a
magazine's advance publication of excerpts from the memoirs
of former President Gerald Ford infringed the copyright
thereon. 471 U.S. at 569. In doing so the Court explained
how the regime of copyright itself respects and adequately
safeguards the freedom of speech protected by the First
Amendment.

[C]opyright's idea/expression dichotomy "strike[s] a
definitional balance between the First Amendment and the
Copyright Act by permitting free communication of facts
while still protecting an author's expression." No author
may copyright his ideas or the facts he narrates. 17 U.S.C.
- 102(b). See e.g., New York Times Co. v. United States, 403
U.S. 713, 726, n. (1971) (Brennan, J., concurring)
(Copyright laws are not restrictions on freedom of speech as
copyright protects only form of expression and not the ideas
expressed). Id. at 556 (citation omitted). The first
amendment objection of the magazine was misplaced "[i]n view
of the First Amendment protections already embodied in the
Copyright Act's distinction between copyrightable expression
and uncopyrightable facts and ideas, and the latitude for
scholarship and comment traditionally afforded by fair use."
Id. at 560.

In keeping with this approach, we held in United Video that
copyrights are categorically immune from challenges under
the First Amendment. There, certain cable companies
petitioned for review of an FCC regulation providing that
the supplier of a syndicated television program could agree
to the program being broadcast exclusively by a single
station in a local broadcast area. 890 F.2d at 1176-78. We
rejected the first amendment aspect of their challenge as
follows:

In the present case, the petitioners desire to make
commercial use of the copyrighted works of others.  There is
no first amendment right to do so. Although there is some
tension between the Constitution's copy- right clause and
the first amendment, the familiar idea/expression dichotomy
of copyright law, under which ideas are free but their
particular expression can be copyrighted, has always been
held to give adequate protection to free expression. ...

The plaintiffs argue that "these authorities are restricted
solely to the narrow case where a litigant demands a right
to use otherwise legitimately copyrighted material," which
case is "plainly distinct from [this] First Amendment
challenge[ ] to the constitutionality of the statute
granting a [copy]right in the first instance." We think the
plaintiffs' purported distinction is wholly illusory. The
relevant question under the First Amendment -- regardless
whether it arises as a defense in a suit for copyright
infringement or in an anticipatory challenge to a statute or
regulation -- is whether the party has a first amendment
interest in a copyrighted work. The works to which the CTEA
applies, and in which plaintiffs claim a first amendment
interest, are by definition under copyright; that puts the
works on the latter half of the "idea/expression dichotomy"
and makes them subject to fair use. This obviates further
inquiry under the First Amendment.  ...

-- 
Seth Finkelstein  Consulting Programmer  address@hidden 
http://sethf.com
Anticensorware Investigations -
http://sethf.com/anticensorware/
Seth Finkelstein's Infothought blog -
http://sethf.com/infothought/blog/
http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html