Thoughts on the DMCA (after Eldred)
Update -- Evan P. Schultz: "My hunch is that Justice Ginsburg brought up fair use -- and the links between free expression and copyright, and the importance of Congress' respecting "the traditional contours of copyright protection" -- as a way to show that the Supreme Court sees fair use as an integral aspect of free speech. And it's also my guess that the Court was signaling that it won't protect technological end runs around fair use."
Originally posted Jan 17, 2003 -- Balkin: "By defending extended terms on the theory that fair use and idea/expression were effectively held constant, they opened themselves up to the argument that fair use and idea/expression have not been held constant, and that they won't be held constant in the digital age. That's why I think they were clueless. But they said it, and now we have to live with what they said, and for those of us who think the DMCA is a bad statute, Eldred creates a new argument for its repeal or for a constitutional challenge."
Nimmer: "Copyright's inherent protections are sufficient to protect the First Amendment. An external application of the First Amendment is therefore unnecessary to protect copyright."
Neil Netanel: "These protections included such safety valves as the idea/expression dichotomy, fair use, and the limited duration of copyright. However, he went on to explain that these safety valves are today in 2001 a 'pale expression' of what they were in 1970."
Lessig: "I'm a great admirer of Professor L. Ray Patterson's work, and you're right he does argue exactly that. Someday I am hopeful the courts are close enough to his position to make it useful to argue. At the moment, however, the world is far from this view." (e-mail from Lawrence Lessig to the Author, May 5, 2001 in response to Author's view that "in a nutshell L. Ray Patterson argues that ordinary use was 'misplaced' by the 1909 Act and subsequently revived in Sony. Under this theory, fair use is derived from the copyright clause without resorting to Section 107.")
Originally posted Jan 17, 2003 -- Balkin: "By defending extended terms on the theory that fair use and idea/expression were effectively held constant, they opened themselves up to the argument that fair use and idea/expression have not been held constant, and that they won't be held constant in the digital age. That's why I think they were clueless. But they said it, and now we have to live with what they said, and for those of us who think the DMCA is a bad statute, Eldred creates a new argument for its repeal or for a constitutional challenge."
Nimmer: "Copyright's inherent protections are sufficient to protect the First Amendment. An external application of the First Amendment is therefore unnecessary to protect copyright."
Neil Netanel: "These protections included such safety valves as the idea/expression dichotomy, fair use, and the limited duration of copyright. However, he went on to explain that these safety valves are today in 2001 a 'pale expression' of what they were in 1970."
Lessig: "I'm a great admirer of Professor L. Ray Patterson's work, and you're right he does argue exactly that. Someday I am hopeful the courts are close enough to his position to make it useful to argue. At the moment, however, the world is far from this view." (e-mail from Lawrence Lessig to the Author, May 5, 2001 in response to Author's view that "in a nutshell L. Ray Patterson argues that ordinary use was 'misplaced' by the 1909 Act and subsequently revived in Sony. Under this theory, fair use is derived from the copyright clause without resorting to Section 107.")
