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

Seth Finkelstein writes:

: 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.

But if the Court can be convinced that the ``regime of copyright'' does
not permit the retroactive extension, then the retroactive extension
becomes a sitting duck for the first amendment argument.

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists