Re: (US) Free speech ./. (c)

On Sat, 31 Jul 1999, Mikael Pawlo <mpawlo[_at_]algonet.se> wrote:
>
> In Sweden the competition between freedom of speech and copyright
> protection is getting more fierce every day. Do you know of US case
> law on the subject, i.e. cases where copyright infringement has been
> defended (successfully or not) due to issues regarding freedom of
> speech?
>
> Any pointers will be appreciated!

There is an excellent law review article of the tension between freedom of speech and copyright at
http://www.law.ucla.edu/faculty/volokh/copyinj.htm Section II.A. is particularly relevant and contains citations to cases. Copyright does act to restrict freedom of speech in the US. To quote from the article, by Prof. Mark Lemley, UC Berkeley Law and Prof. Eugene Volokh, UCLA Law School:

     'Harper & Row v.  Nation Enterprises made clear that copyright 
     law is substantively constitutional: Speech which infringes 
     another's copyright isn't constitutionally shielded from copyright 
     law.  Copyright, the Court said, is itself an "engine of free
     expression," because it "supplies the economic incentive to create
     and disseminate ideas."'

Justice Brennan's opinion in New York Times Co. v. United States, [which] said that "[c]opyright laws are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed." And it stressed that it would be an "abuse of the copyright owner's monopoly" for copyright law to become "an instrument to suppress facts."

Speech that copies another's expression (setting aside fair use) can be restricted, but speech that borrows only facts or ideas, or fairly uses expression, is constitutionally protected... Speech communicating the same facts and ideas in other ways, or speech that borrows expression but that falls within the fair use exception, is constitutionally protected.

The fair use exception is a complex doctrine. For an extensive collection of materials, see the Stanford libraries site at http://fairuse.stanford.edu/

Diane Cabell
http://www.mama-tech.com/
Fausett, Gaeta & Lund, LLP
Boston, MA
<cabell[_at_]mama-tech.com> Received on Sun Aug 01 1999 - 12:07:31 GMT