Class 22
Copyright, Winter, 2014
Copyright and the
Amendment
st
1
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
The Law School
The University of Chicago
[email protected]
Copyright © 2005-14 Randal C. Picker. All Rights Reserved.
October 4, 2015
2
The Bill of Rights

Preamble
Congress
of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand
seven hundred and eighty nine.
October 4, 2015
3
The Bill of Rights

Preamble
THE
Conventions of a number of the States,
having at the time of their adopting the
Constitution, expressed a desire, in order to
prevent misconstruction or abuse of its powers,
that further declaratory and restrictive clauses
should be added:
October 4, 2015
4
The Bill of Rights

Preamble
And
as extending the ground of public confidence
in the Government, will best ensure the beneficent
ends of its institution.
RESOLVED by the Senate and House of
Representatives of the United States of America,
in Congress assembled, two thirds of both Houses
October 4, 2015
5
The Bill of Rights
concurring,
that the following Articles be proposed
to the Legislatures of the several States, as
amendments to the Constitution of the United
States, all, or any of which Articles, when ratified
by three fourths of the said Legislatures, to be
valid to all intents and purposes, as part of the
said Constitution; viz.
October 4, 2015
6
The Bill of Rights
ARTICLES
in addition to, and Amendment of the
Constitution of the United States of America,
proposed by Congress, and ratified by the
Legislatures of the several States, pursuant to the
fifth Article of the original Constitution.
October 4, 2015
7
Bill of Rights

September 25, 1789
12

amendments proposed to states for adoption
Ratification
1
and 2 not passed
3-12, renumbered as 1-10, ratified on December
15, 1791
October 4, 2015
8
October 4, 2015
12 Amendments Proposed, Appendix, Senate
9
Journal, First Congress, First Session
Bill of Rights

1st Amendment
Congress
shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.
October 4, 2015
10
October 4, 2015
11
October 4, 2015
12
First Amendment Tools


Content-Based Regulation
Viewpoint-Based Regulation
October 4, 2015
13
“New York’s ‘Son of Sam’ law requires that an
accused or convicted criminal’s income from works
describing his crime be deposited in an escrow
account. These funds are then made available to the
victims of the crime and the criminal’s other creditors.
We consider whether this statute is consistent with the
First Amendment.”
October 4, 2015
14
Simon & Schuster, 502 U.S. 105 (1991)
“Every person, firm, corporation, partnership,
association or other legal entity contracting with
any person or the representative or assignee of
any person, accused or convicted of a crime in
this state, with respect to the reenactment of such
crime, by way of a movie, book, magazine article,
tape recording, phonograph record, radio or
television presentation, live entertainment of any
October 4, 2015
15
Simon & Schuster, 502 U.S. 105 (1991)
“kind, or from the expression of such accused or
convicted person’s thoughts, feelings, opinions or
emotions regarding such crime, shall submit a
copy of such contract to the board and pay over
to the board any moneys which would otherwise,
by terms of such contract, be owing to the person
so accused or convicted or his representatives.’
N. Y. Exec. Law § 632—a(1) (McKinney 1982).”
October 4, 2015
16
Simon & Schuster, 502 U.S. 105 (1991)
“A statute is presumptively inconsistent with the
First Amendment if it imposes a financial burden
on speakers because of the content of their
speech. … The Son of Sam law is such a contentbased statute. It singles out income derived from
expressive activity for a burden the State places
on no other income, and it is directed only at
works with a specified content.”
October 4, 2015
17
Simon & Schuster, 502 U.S. 105 (1991)
“We conclude simply that in the Son of Sam law,
New York has singled out speech on a particular
subject for a financial burden that it places on no
other speech and no other income. The State’s
interest in compensating victims from the fruits of
crime is a compelling one, but the Son of Sam law
is not narrowly tailored to advance that objective.
As a result, the statute is inconsistent with the
First Amendment.”
October 4, 2015
18
Simon & Schuster, 502 U.S. 105 (1991)
“A State might choose to prohibit only that
obscenity which is the most patently offensive in
its prurience — i.e., that which involves the most
lascivious displays of sexual activity. But it may
not prohibit, for example, only that obscenity
which includes offensive political messages.”
October 4, 2015
19
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
Copyright and the
Amendment

st
1
Two Different Framings
Big
Big Picture
Specific Cases

Then Return to 104A and Golan
October 4, 2015
20
Big Big Picture

Questions
Should
we try to evaluate net effects of copyright
statute on volume of speech?
 Two universes: one with copyright statute, one
without copyright statute: where do we get more
speech?
If more with copyright, should that resolve 1st
Amendment questions?
October 4, 2015
21
Copyleftish Views

Neil Netanel, Copyright’s Paradox, p109:
“Copyright
prevents speakers ranging from the
young journalist Alan Cranston to hip-hop artist
Biz Markie from expressing themselves through
the salient texts, stories, songs, sounds and
images that populate our culture. Copyright thus
imposes a significant burden on expressive
diversity and autonomy.”
October 4, 2015
22
Big Big Picture

Questions
Even
if we concluded that particular a copyright
statute increases speech on net, what does that
mean for particular provisions?
 Does Congress get a 1st amendment pass
because net beneficial or is there some duty to
evaluate provision by provision to maximize the
net speech benefit?
October 4, 2015
23
Hypothetical Copyright
Provisions

Hypo 1
Congress
adds a new Section 102(c) that
excludes from copyright protection works of the
sort covered by the NY Son-of-Sam statute.

Consistent with the Copyright Clause? The 1st
Amendment?
October 4, 2015
24
Hypothetical Copyright
Provisions

Hypo 2
Congress
passes a copyright statute that limits
coverage under Section 102 only to works
supporting a capitalist economy.

Consistent with the Copyright Clause? The 1st
Amendment?
October 4, 2015
25
Actual Copyright Provisions

Try Four:
102(a)
106(1,2)
107
104A
October 4, 2015
26
102(a)

(a)
Copyright
protection subsists, in accordance with
this title, in original works of authorship fixed in
any tangible medium of expression, now known or
later developed, from which they can be
perceived, reproduced, or otherwise
communicated, either directly or with the aid of a
machine or device.
October 4, 2015
27
102(a)

Content-based? Consistent with Copyright
Clause? Consistent with 1st amendment?
October 4, 2015
28
106(1,2)

Text
Subject
to sections 107 through 122, the owner of
copyright under this title has the exclusive rights to
do and to authorize any of the following:
 (1) to reproduce the copyrighted work in copies
or phonorecords;
 (2) to prepare derivative works based upon the
copyrighted work;
October 4, 2015
29
106(1,2)

Content-based? Consistent with Copyright
Clause? Consistent with 1st amendment?
October 4, 2015
30
107

Text
Notwithstanding
the provisions of sections 106
and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or
phonorecords or by any other means specified by
that section, for purposes such as criticism,
comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright.
October 4, 2015
31
107

Content-based? Viewpoint-based? Consistent
with Copyright Clause? Consistent with 1st
amendment?
October 4, 2015
32
October 4, 2015
33
October 4, 2015
34
October 4, 2015
35
October 4, 2015
36
Restored Works and the Public
Domain

104A: Copyright in Restored Works
http://www.copyright.gov/title17/92chap1.html#10
4a
October 4, 2015
37
104A Legislative History

Senate Report 103-412
The
legislation includes language to restore
copyright protection to certain foreign works from
countries that are members of the Berne
Convention or WTO that have fallen into the public
domain for reasons other than the normal
expiration of their term of protection.
October 4, 2015
38
104A Legislative History
The
Agreement requires WTO countries to comply
with Article 18 of the Berne Convention. While the
United States declared its compliance with the
Berne Convention in 1989, it never addressed or
enacted legislation to implement Article 18 of the
Convention. Article 18 requires that the terms of
the convention apply to all works that have fallen
into the public domain by reasons other than the
expiration of its term of protection.
October 4, 2015
39
104A Legislative History
(Examples
include failure to file a timely renewal
application and failure to affix a copyright notice).
The bill would automatically restore copyright
protection for qualifying works of authors from
Berne or WTO countries one year after the WTO
comes into being.
October 4, 2015
40
Removing Works from Public
Domain

Should We Care?
October 4, 2015
41
October 4, 2015
42
NYT (14 Feb. 2014)
October 4, 2015
43
NYT (14 Feb. 2014)
October 4, 2015
44
NYT (14 Feb. 2014)
Paul Heald, How Copyright Makes Books and Music Disappear
October 4, 2015
45
(and How Secondary Liability Rules Help Resurrect Old Songs)
Breyer Dissent in Golan

Higher Prices = Less Culture
“First,
‘restored copyright’ holders can now charge
fees for works that consumers previously used for
free. The price of a score of Shostakovich’s
Preludes and Fugues Op. 87, for example, has
risen by a multiple of seven.”
October 4, 2015
46
Breyer Dissent in Golan

Higher Prices = Less Culture
“If
a school orchestra or other nonprofit
organization cannot afford the new charges, so be
it. They will have to do without—aggravating the
already serious problem of cultural education in
the United States.”
October 4, 2015
47
Breyer Dissent in Golan

Higher Prices = More Piracy
“These
high administrative costs can prove
counterproductive in another way. They will tempt
some potential users to ‘steal’ or ‘pirate’ works
rather than do without. And piracy often begets
piracy, breeding the destructive habit of taking
copyrighted works without paying for them, even
where payment is possible.”
October 4, 2015
48
Restored Works and the
Constitution

104A
Consistent
with the Copyright Clause?
The First Amendment?
October 4, 2015
49
Descargar

Standard Setting in High