Re: copyright under stress

On Wed, 07 Jun 2000, Kevin Grierson <kgrierson[_at_]wilsav.com> wrote:
>
> I respectfully disagree with your thesis that copyright and the
> first amendment are at odds. Courts have historically acknowledged
> that the government may lawfully regulate the time, place and manner
> of freedom of expression (e.g. bans on incitement to riot, public
> noise ordinances banning "speech" over a certain number of decibels,
> etc.). Copyright restricts a person's ability to copy someone else's
> particular expression of an idea, but does not prohibit the expression
> of that idea. "Fair use" of copyrighted material is generally accorded
> less deference as the use becomes more and more commercial, and this
> dovetails nicely, IMO, with the lesser protections accorded to
> commercial speech.

Kevin:

While I agree with your central tenet -- that the First Amendment and copyright law are not irreconcilably in conflict -- the argument that this is so because "time, place and manner" restrictions on speech are routinely upheld is not a winner.

Remember that "time, place and manner" restrictions are acceptable only if they are content-neutral; that is, they are applied in a non-discriminatory fashion irrespective of the content of the speech being regulated. When speech is being regulated on the basis of its content, as is inevitably the case in a copyright action, the Supremes apply a more rigorous test.

And while I like your idea about fair use dovetailing with the lesser protections afforded to commercial speech, the unfortunate fact is that (as usual) the Supremes are using the word "commercial" in two very different ways. In the First Amendment context, "commercial" speech is speech that does little more than "propose a commercial transaction", e.g., advertising. The copyright claims brought against this kind of speech are few and far between.

You are right, however, that speech that is at the core of the First Amendment -- commentary, news reporting, educational purposes -- stands a far better chance of succeeding on a "fair use" defense against a copyright claim than speech that is for commercial gain, although one need only consider the Two Live Crew/Pretty Woman case for an exception to that point.

Greg Ikonen
gikonen[_at_]vlg.com Received on Thu Jun 08 2000 - 15:31:04 GMT