Copyrights Rule

Lawrence Lessig offers a diatribe on the strange distinction the court system draws between different types of speech infringement. For anyone who's ever wondered why the good guys won the CDA case but lost the DeCSS case...

Comments

Thoughts

[troyboy]

Part of the problem that Lessig addresses is that Congress has the constitutional power to grant copyrights. So, traditionally, courts have had a good excuse to just say that the First Amendment is not an issue in copyright cases. Limits to copyright such as fair use (reverse engineering, sampling, parody, etc) have addressed many of the free speech concerns.

The reason that courts may be able to get to the right result in the DeCSS case is because, first of all, it is not clear that Congress was acting in its copyright power. Therefore, the traditional First Amendment analysis may apply. Second, because the DMCA effectively eliminates fair use, it is difficult for a court to say that the First Amendment is not applicable.

So, the DeCSS case will really be a good indicator of which way things will go. If the DMCA anti-circumvention provisions survive, then copyright could continue to be a special area immune from the First Amendment. This would be a bad thing. But, if the Second Circuit and/or the Supreme Court strike it down, it could open up a whole world of possibilities for free speech on the Internet.