[dvd-discuss] Re: O'Connor quoted at USA Today from Eldred oral argument

[Seth Finkelstein <sethf(at)sethf.com>]

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  sethf@sethf.com  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