Re: Re:[RadioTech] Webcast Copyright Fees

[Garrett Wollman <wollman>]

<<On Sun, 16 Dec 2001 12:40:31 -0500, "Dan Billings" <dib9@gwi.net> said:

> As a result, the traditional First Amendment protections provided to
> print publications are applicable to the Internet.

...and this may have an interesting interaction with the dramatic
recent expansion in the scope of intellectual-property laws.  The
Digital Millennium Copyright Act and the Mickey Mo^W^WSonny Bono
Copyright Term Extension Act are two such laws which are presently
being challenged in part on First Amendment grounds.

The argument against DMCA goes something like this.  DMCA purports to
override the ``fair use'' provisions of copyright law.  However,
``fair use'' as it exists in statute is merely the codification of a
long-standing common law principle, which arises from a constitutional
balancing of the free-speech rights of individuals with Congress's
right (in Article I sec. 3) to grant authors exclusive rights to their
work for a limited time.  (DMCA also includes other provisions where
the free-speech case is even more clear, although thus far this hasn't
been so obvious to the judges in the Second Circuit.)

The argument against the Disney Monopoly Extension Act^W^W^W^Wother
law I mentioned is similar.  One can also make an argument on original
intent grounds, should the vote of Clarence Thomas matter, that 95
years is clearly beyond the pale as far as what the Framers would have
meant by the phrase ``limited time''.  On the free-speech side, one
can also make the argument that 95-year copyright terms are clearly
not necessary to serve the governmental interest of promoting
``progress in science and the useful arts'', since all of the works so
protected were created when copyrights had a maximum term of 56
years.  (In the Founders' time, copyright protected only
domestically-printed works for at most 28 years.)

However, all this argument is probably moot, because the Supreme Court
has given a great deal of deference to Congress (far more than they
are due) when it comes to the scope of intellectual-property law.

-GAWollman