Comment Problems with Brief (Score 1) 161
I'm sure this will draw many a flame, especially considering this is my first post (I'm a long time troll) and the upcoming legalese, but here goes anyway...
First, let me be clear in saying, from a policy standpoint, I agree with 2600. Though code obviously receives some free speech protection (as does all expression), I really don't think that the DMCA offends the First Amendment (despite its many other shortcomings and problems). In general, I think the free speech defense is a bit weak, especially with the way this brief makes the argument.
The major problem I have is with the basic premise upon which its argument is based: that if material is copyrightable, it is also protected by the First Amendment. I'm just not sure where this notion comes from. Expression in terms of copyright is far from being synonomous with expression in a First Amendment context.
I know of no court that has held that because material is copyrightable, it is protected by the First Amendment. A example to the contrary that springs to mind is obscenity. The Supreme Court held that obscenity is not protected by the First Amendment in Miller v. California, 413 U.S. 15 (1973). However, lower courts have still found obscenity to be copyrightable. Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982) (holding that obscenity is not a defense to a copyright infringement claim under the Copyright Act of 1976) and Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) (concluding that the 1909 copyright statute contained no explicit or implicit bar to copyright in obscene works) are two examples.
The brief cites Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539(1985) for support of this notion:
My point here is not to debate the merits of the free speech argument in general, but simply to point out that the author's authority for First Amendment protection is misguided. In my opinion, such a misguided premise probably serves only to undermine a brief that is otherwise helpful in demonstrating the academic benefits of expression in code.
First, let me be clear in saying, from a policy standpoint, I agree with 2600. Though code obviously receives some free speech protection (as does all expression), I really don't think that the DMCA offends the First Amendment (despite its many other shortcomings and problems). In general, I think the free speech defense is a bit weak, especially with the way this brief makes the argument.
The major problem I have is with the basic premise upon which its argument is based: that if material is copyrightable, it is also protected by the First Amendment. I'm just not sure where this notion comes from. Expression in terms of copyright is far from being synonomous with expression in a First Amendment context.
I know of no court that has held that because material is copyrightable, it is protected by the First Amendment. A example to the contrary that springs to mind is obscenity. The Supreme Court held that obscenity is not protected by the First Amendment in Miller v. California, 413 U.S. 15 (1973). However, lower courts have still found obscenity to be copyrightable. Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982) (holding that obscenity is not a defense to a copyright infringement claim under the Copyright Act of 1976) and Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) (concluding that the 1909 copyright statute contained no explicit or implicit bar to copyright in obscene works) are two examples.
The brief cites Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539(1985) for support of this notion:
I'm not sure how the author can read Harper & Row to support such a notion. The portion cited comes from the Court's discussion of the inherent tension between the First Amendment and copyright (since copyright necessarily limits some speech by prohibiting 'copying') in rejecting The Nation's argument that it should be given a wider fair use defense because "the information conveyed relates to matters of high public concern." The point the Court was making in the quoted excerpt was simply that copyright law mitigates this tension by protecting only expression, and leaving the facts/ideas unprotected, and thus, not restrained.The fact that computer code is copyrightable means that it is protected by the First Amendment.(9) Copyright law, of which DMCA is a part, confirms the point:Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985).In view of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, we see no warrant for expanding the doctrine of fair use....
My point here is not to debate the merits of the free speech argument in general, but simply to point out that the author's authority for First Amendment protection is misguided. In my opinion, such a misguided premise probably serves only to undermine a brief that is otherwise helpful in demonstrating the academic benefits of expression in code.
