Copyright and free speech (Was: Infringement Happening...)

John H. Lederer <johnl[_at_]ibm.net> wrote:
>
> Rod McCarvel <rod[_at_]seanet.com> wrote:
> >
> > That leaves us with fair use -- which is of little or no help...
>
> Let me give you a troubling incident of a few years back.
>
> I was Chair of a Bar Committee that produced a lengthy report
> recommending a S. Ct. rule change.
>
> A member wrote a lengthy letter criticizing aspects of the report.
> Incidentally it made several assertions about the economics of a
> particular commercial produuct. The letter was sent to me as Chair,
> the Chief Justice, President of the Bar, and assorted other persons
> who, by their position, would be involved or interested in the rule
> change.
>
> As chair, I included a copy of the critical letter as an appendix in the
> report to the Board of Bar Governors as I would include any critical
> letter of substance. I also sent a copy to the maker of the product
> should he care to comment.
>
> The maker sent back a letter pointing out that the discussion of his
> product in the critical letter was based on several somewhat embarassing
> factual errors. I also included a copy of his letter as an appendix to
> the report.
>
> The original author of the critical letter announced through his lawyer
> that he would sue the State Bar for copyrigth violation were his letter
> included in the report. I assume that he was embarassed about the
> factual errors.
>
> After consideration, we decided to just duck the issue, and remove the
> critical letter from the report's appendix.
>
> Now, whether the inclusion of the letter was or was not fair use, is
> probably immaterial. We pulled the letter out of the report rather than
> take the risk that it was not -- it was the "easiest" course.
>
> As a result, the report no longer included crticisim of it-- some in my
> estimation invalid because of the factual errors, but some valid. Those
> peeople who had received the critical letter directly would also be
> operating on some input that would not be available to those who merely
> got hte report and its appendix.
>
> I cannot help but feel that in that whole process free speech was
> trumped by copyright. The problem was the vagueness of the
> copyright/free speech/public record issues.
>
> I think that some of the Church of Scientology cases raise somewhat
> similar issues though I have not followed them closely.

Don't you think there was an implied-in-fact license to copy for just exactly the limited specifc purposes described by you? Did the letter contain mostly facts, not subject to copyright protection? Why not dare that lawyer to sue? Would that not be pretty safe under the circumstances? Would that not enhance free speech protection rather than let it be "trumped" by probably non-existent copyright protection?

Martin

Martin Perlberger
Perlberger Law Offices
1267 Stoner Avenue
Los Angeles, CA 90025

15 Park Row, #500
New York, NY 10038

http://www.perlberger.com/
mpesq[_at_]perlberger.com Received on Wed Jul 22 1998 - 18:20:42 GMT