Vol 7 No 1 - Roger Williams University School of Law

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gave incentive for people to express ideas.154 The existence of thefair use, along with other exceptions, was also important.155The defendants in Harper & Row had extracted/copied 300words from former President Gerald Ford’s biography, before itwas published, ruining a deal that had been made with TimeMagazine to do a pre-publication piece of 12,000 words. TheSupreme Court held that copying 300 words was not a fair use asit contained the most sensational details, including informationabout former President Nixon’s pardon (quality not quantitymattered here), and ruined an aspect of the commercialexploitation of the work. The defendants argued for a specialpublic figure or interest exception on top of fair use that wouldallow copyrighted work to be used in social communication. TheCourt rejected that argument, noting that copyright was itself anengine of free expression making it possible and rewarding forpeople to invest in the development and dissemination of ideas.156As the Act stood, there was sufficient reconciliation of thecommodifying or propertizing of information through copyrightand the notion of free speech.The First Amendment challenge to intellectual propertylegislation was dealt a further blow in the Eldred decision whenthe United States Court of Appeals for the District of Columbiaendorsed and reaffirmed the holding in Harper & Row that theCopyright Act and the First Amendment are adequately reconciledthrough the notions of the idea/expression dichotomy and the fairuse (along with other permissive use) doctrine(s).157 In otherwords, since the Copyright Act protects expression of ideas andnot the ideas themselves, there is technically no barrier to anycommunicative activity. Furthermore, fair use makes sociallynecessary material available in the face of the exclusive rights ofthe owner.In Eldred, the plaintiffs argued that the CTEA violated theFirst Amendment and was unconstitutional.158 The Courtexplained:The decisions of the Supreme Court in Harper & Row154. Id. at 558.155. Id. at 560.156. Id. at 558.157. Eldred, 239 F.3d at 375.158. Id. at 374.
Publishers Inc. v. Nation Enterprises and of this court inUnited Video, Inc. v. FCC, stand as insuperable bars toplaintiffs’ first amendment theory. In Harper & Row theCourt held that a magazine’s advance publication ofexcerpts from the memoirs of former President GeraldFord infringed the copyright thereon. In doing so theCourt explained how the regime of copyright itselfrespects and adequately safeguards the freedom of speechprotected by the First Amendment . . . . The [F]irst[A]mendment objection of the magazine was misplaced“[i]n view of the First Amendment protections alreadyembodied in the Copyright Act’s distinction betweencopyrightable expression and uncopyrightable facts andideas, and the latitude for scholarship and commenttraditionally afforded by fair use.” In keeping with thisapproach, we held in United Video that copyrights arecategorically immune from challenges under the FirstAmendment. There, certain cable companies petitionedfor review of an FCC regulation providing that thesupplier of a syndicated television program could agree tothe program being broadcast exclusively by a singlestation in a local broadcast area. We rejected the firstamendment aspect of their challenge as follows:In the present case, the petitioners desire to makecommercial use of the copyrighted works of others. Thereis no first amendment right to do so. Although there issome tension between the Constitution’s [C]opyright[C]lause and the first amendment, the familiaridea/expression dichotomy of copyright law, under whichideas are free but their particular expression can becopyrighted, has always been held to give adequateprotection to free expression.159The plaintiffs argued that those authorities were restrictedsolely to the narrow case where a litigant demands a right to useotherwise legitimately copyrighted material, which was distinctfrom the litigation at hand that sought to challenge theconstitutional validity of the Copyright Act itself. The Court159. Id. at 375-76 (citations omitted).
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 58 and 59: the process through which digital p
Page 60 and 61: the United States or the trade and
Page 62 and 63: patent law is the utilitarian ethic
Page 64 and 65: a work to be publicly identified as
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Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
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Page 76 and 77: eproduced, though there be no ingen
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Page 80 and 81: with respect to “patents of inven
Page 82 and 83: Because, in part of the joint reaso
Page 84 and 85: even by the plaintiffs today.86The
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Page 110 and 111: that a monopolist should not seek t
Page 112 and 113: motivating force.While antitrust or
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Page 116 and 117: his refusal to sell or license his
Page 118 and 119: defense and exploitation of the cop
Page 120 and 121: the information age there have been
Page 122 and 123: In response to Intel’s argument t
Page 124 and 125: Court of First Instance in concludi
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Page 128 and 129: as a digital property owner, which
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Page 132 and 133: certain circumstances, exempted fro
Page 134 and 135: for circumventing a technological p
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Page 142 and 143: commerce.”320 Is innovation stifl
Page 144 and 145: anner advertisement company DoubleC
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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