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

On Sun, 01 Aug 1999, Diane Cabell <cabell[_at_]mama-tech.com> wrote:
>
> 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."

I think there is an interesting problem here. The concept/expression dichotomy is intellectually attractive, but principally because it leads to a desired result.

The First Amendment's "Congress shall make no law... abridging... the freedom of the press..." does not, of course make the distinction.

Indeed, arguably, it contradicts it. "Freedom of speech" may refer to ideas, but "freedom of the press" inescapably is addressing a means of dissemination by copying.

If my memory serves me , most of the revolutionary propaganda was disseminated by various printers copying and reprinting the tracts from the more hot headed colonies (ironically something that today's copyright law would prohibit unless Thomas Paine put in a disclaimer of copyright <g>). Much of the British censorship effort was directed against the means of copying (printers) and not merely the authors.

That is a pretty consistent pattern. It is easier to require licenses of copy machines, suppress non-state owned TV stations, fine ISP's, or break printing presses than to capture elusive subversive authors.

Thus it seems to me that an argument that the First Amendment protects "ideas" but not the means of disseminating those ideas -- copying expressions -- is not a very satisfactory one for rationalizing the Copyright Clause and the First Amendment.

The idea that the Copyright Clause is constitutional because it encourages the dissemination of ideas by providing finacial incentives ("an engine of free expression") is more atractive. However, it seems to me that such a concept demands that the suppression of copying be minimized to that necessary to encourage the dissemination of ideas. It attracts very close, and very fine, judicial, not legislative, judgements and supervision.

It also, I think, is starting to show technological cracks. The origins of copyright, I think (I am no expert), lay in the relatively large capital investment of setting type and creating printing plates. As that investment goes down by technological advances like the Internet, the need for extensive monopolies declines.

Of course, the counter argument is the huge investment Hollywood makes to create a movie-- but then I am really not sure that a primary aim of the copyright laws was to protect Darth Vader's dialogue, or protect a copy of a Power Ranger on a McDonald's cup.<c>

I suspect others have a much better knowledge on the history of copyright, the First amendment and government censorship than I.

Regards,
John

John Lederer
<johnl[_at_]ibm.net> Received on Mon Aug 02 1999 - 15:07:31 GMT