Does copyright conflict with free speech? The idea that it does has gained a lot of traction recently. Yet arguments of a conflict between copyright law and the First Amendment in the United States are relatively new — understanding why the two co-existed for nearly two centuries before these arguments began to appear should prove valuable to current scholarship.

In previous posts, I outlined several explanations for this lack of conflict based on historical documents and court decisions. Copyright laws were passed by the States after provisions for freedom of speech and the press were enshrined in law, indicating that the two were viewed as compatible. At that time, Liberty of the press was defined primarily as an absence of government licensing — even under broader definitions, protecting an author’s copyright was not viewed as offensive to a free press. In part, this was because copyright was conceived as a property right, and liberty does not extend to invasions of other’s rights.

Today I want to present perhaps one of the most important reasons copyright has historically escaped free speech scrutiny.

During their formative years, the liberty of the press and recognition of copyright were seen as means to an end. They shared the same goal — the advancement of knowledge, the arts, and sciences. And they were viewed as complementary, rather than conflicting, means to reach this goal.

Freedom of the Press Goals and Purpose

During the 18th century, at a minimum, the freedom of the press meant an absence of prior restraints on publishing — whether through government licensing or censorship. Noted jurist William Blackstone, who ensconced this minimalist definition of press liberty in his Commentaries on the Laws of England, described the aversion to previous restraints: “To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.”

The Founding Fathers viewed the liberty of the press as promoting broader goals then this. In a 1774 Letter to the Inhabitants of the Province of Quebec, the First Continental Congress wrote:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

To the Continental Congress, the primary purpose of press liberty was political: a democratic government needs to be openly examined to function. But note the secondary purpose: “the advancement of truth, science, morality, and arts in general.” This is strikingly similar to the later constitutional purpose given for Congress’s copyright authority: “To promote the Progress of Science and useful Arts.”

A Free Press Promotes Knowledge

There are other examples from the 18th and 19th centuries of those who believed one of the purposes of free speech was to encourage knowledge.

The Cato Letters, a series of newspaper articles published in England in the 1720s that served as ideological inspiration for the Founding Fathers, included this oft-quoted passage on the freedom of speech: “Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors, and a barrier against them. It produces excellent writers, and encourages men of fine genius.”

In his preface to the 1738 edition of Milton’s Areopagitica, poet James Thomson1 writes about the importance of this goal of a free press to society:

What is it that distinguishes human Society from a brutish herd, but the flourishing of the Arts and Sciences; the free Exercise of Wit and Reason? What can Government mean, intend, or produce, that is worthy of Man, or beneficial to him, as he is a rational creature, besides Wisdom, Knowlege, Virtue and Science? Is it merely indeed that we may eat, drink, sleep, sing and dance with security that we choose Governours, subject our selves to their administration, and pay taxes? Take away the Arts, Religion, Knowlege, Virtue, (all of which must flourish, or sink together) and in the Name of Goodness, what is left to us that is worth enjoying or protecting? Yet take away the Liberty of the Press, and we are all at once stript of the use of our noblest Faculties: our Souls themselves are imprisoned in a dark dungeon: we may breathe, but we cannot be said to live.

Liberty of the press, as Milton argued for in what is considered one of the “most influential and impassioned philosophical defences” of the principle — here, taking the form of an absence of government licensing or censorship — is a prerequisite to the progress of knowledge, art, and science. Thomson was not alone in this sentiment.

Elsewhere, a London magazine from 1820 described the goal of the liberty of the press like this: “To promote the diffusion of knowledge, to elicit the fruits of genius, to facilitate and to encourage the general interchange of minds and of hearts”

And the first issue of the American Magazine of Useful and Entertaining Knowledge, published in 1834, included a brief article on newspapers, where it was writeen, “The progress of society has been onward, wherever there has been a free press maintained and encouraged. It has chased away much darkness from the civilized parts of the world, and spread light and knowledge in our path.”

Copyright Promotes Knowledge

The copyright statutes passed in the States prior to the drafting of the Constitution use similar language. The acts were passed with the purpose of “the encouragement of literature and genius” and the goal of, for example, “the improvement of knowledge, the progress of civilisation, and the advancement of human happiness.” The means of implementing this purpose to reach the goal was the securing of legal rights to “men of learning who devote their time and talents” to literature and genius.2

The impetus for these laws came in part from the efforts of authors like Joel Barlow. In 1783, he wrote the Continental Congress in favor of a copyright law. The famous poet and drafter of the Treaty of Tripoli told the Congress, “As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.”

Barlow’s letter encapsulated the reasoning behind the idea of copyright as an incentive to promote knowledge: literary and intellectual works took a considerable amount of time and resources to produce, and given the great public benefits that flow from them, some way of encouraging people to devote their time and resources to producing them was needed.

You can see this idea adopted and explained by others throughout the 19th century. In his famous speech to the English House of Commons in 1841, Thomas Babington Macaulay said:

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated; and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

In 1853, Charles Bishop Goodrich published The Science of Government: As Exhibited in the Institutions of the United States, a popular early treatise on US government. His section on copyright takes the same view as Barlow and Macaulay:

Another power conferred upon congress was and is designed “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” … The propriety of the power, and of its enlarged and liberal exercise, cannot be doubted. Individuals cannot devote their time and lives to the attainment of extensive or important knowledge, unless they can derive some personal benefit from their labor. In every useful invention, in the production of useful writings, the public have as much, and frequently a greater interest than the individual inventor or writer can have. Every measure which can with propriety be adopted to enlarge and extend the progress of science and of the arts, is calculated to accomplish the elevation of the people, and must therefore be regarded as of the utmost importance. The effect of our system, and the encouragement which it affords to the promotion of knowledge, has been apparent. Much advancement has been made, in fact it may be regarded as characteristic, and may be said of the American people, that they are progressive, inventive, and suggestive, in all their operations.

Patronage

At this point, one might think that the shared goals of a free press and copyright are only coincidental: one could easily find references to other means of promoting knowledge at the time. For example, in his first State of the Union address, President George Washington told Congress, “There is nothing which can better deserve your patronage than the promotion of science and literature,” but left it to them to decide “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients.”

Yet as the ideas of a free press and copyright developed, the relationship between the two strenghthened. There was something specific about securing legal rights to authors so that they may profit off their writings that not only advanced the arts and sciences but also advanced the principles of a free press.

As noted above, Macaulay spoke about two ways to remunerate authors: patronage and copyright. He follows that with an explanation of why the latter is more preferable to a free society:

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Like Macaulay, Supreme Court Justice Joseph Story tied the freedom of the press and copyright together. In an 1826 discourse, Story wrote:

One of the most striking characteristics of our age, and that, indeed, which has worked deepest in all the changes of its fortunes and pursuits, is the general diffusion of knowledge. This is emphatically the age of reading. In other times this was the privilege of the few; in ours, it is the possession of the many. Learning once constituted the accomplishment of those in the higher orders of society, who had no relish for active employment, and of those, whose monastic lives and religious profession sought to escape from the weariness of their common duties. Its progress may be said to have been gradually downwards from the higher to the’middle classes of society. It scarcely reached at all, in its joys or its sorrows, in its instructions or its fantasies, the home of the peasant and artisan. It now radiates in all directions; and exerts its central force more in the middle than in any other class of society. The means of education were formerly within the reach of few. It required wealth to accumulate knowledge. The possession of a library was no ordinary achievement. The learned leisure of a fellowship in some university seemed almost indispensable for any successful studies; and the patronage of princes and courtiers was the narrow avenue to public favor. I speak of a period at little more than the distance of two centuries; not of particular instances, but of the general cast and complexion of life.

The principal cause of this change is to be found in the freedom of the press, or rather in this, cooperating with the cheapness of the press. … The daily press first instructed men in their wants, and soon found, that the eagerness of curiosity outstripped the power of gratifying it. No man can now doubt the fact, that wherever the press is free, it will emancipate the people; wherever knowledge circulates unrestrained, it is no longer safe to oppress; wherever public opinion is enlightened, it nourishes an independent, masculine, and healthful spirit. If Faustus were now living, he might exclaim with all the enthusiasm of Archimedes, and with a far nearer approach to the truth, Give me, where I may place a free press, and I will shake the world.

One interesting effect, which owes its origin to this universal love and power of reading, is felt in the altered condition of authors themselves. They no longer depend upon the smiles of a favored few. The patronage of the great is no longer submissively entreated, or exultingly proclaimed. Their patrons are the public; their readers are the civilized world. They address themselves, not to the present generation alone, but aspire to instruct posterity. No blushing dedications seek an easy passport to fame, or flatter the perilous condescension of pride. No illuminated letters flourish on the silky page, asking admission to the courtly drawingroom. Authors are no longer the humble companions or dependents of the nobility: but they constitute the chosen ornaments of society, and are welcomed to the gay circles of fashion and the palaces of princes. Theirs is no longer an unthrifty vocation, closely allied to penury; but an elevated profession, maintaining its thousands in lucrative pursuits.

Copyright: a Critical Component of a Free Press

It would seem that Story and Macaulay’s view of copyright as an integral component of a free press held sway throughout the 18th century and into the 19th.

An editorial calling for copyright protection of newspaper articles appeared in The Reasoner in 1844, in which the authors argued, “If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright.”

British lawyer James Paterson, in an 1880 commentary on the liberty of the press, speech, and public worship, said that “When any person is free to publish whatever he deems interesting or valuable either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom.”

Into the 20th century, we can find reaffirmation of these views. Historian Edward Bloom writes:

Recognition of proprietary rights of authors under the Copyright Act of 1709 was an extremely important step in liberating the press. Copyright security helped to stimulate private initiative by providing authors of books some measure of financial independence. By at least partially obviating the economic function of political patrons, the Act of 1709 aided immeasurably in the freedom of the press.3

Finally, when legal scholars were just starting to develop the free speech critique of copyright, former Register of Copyrights Barbara Ringer offered these observations:

[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public.4

The Engine of Free Expression

Nearly two centuries after the Bill of Rights and the first Copyright Act were passed, the Supreme Court said, “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”5

This metaphor, it would seem, accurately reflects the predominant historical view of copyright. Copyright and freedom of the press were seen as compatible, rather than contradictory, means to promote knowledge and learning. Liberty of the press freed the public from the caprice of the licensor, allowing diverse ideas and sentiments to disseminate. Copyright freed authors from patronage, providing security for the legal rights that encouraged devotion of time and talents to works that promote the progress of art and science.

Footnotes

  1. Copyright scholars will recognize James Thomson as the author of the poem “The Seasons“, which was the subject of two of the most important lawsuits in copyright history: Millar v. Taylor and Donaldson v. Beckett. []
  2. See Connecticut Copyright Statute (1783); New Jersey Copyright Statute (1783); Massachusetts Copyright Statute (1783); New Hampshire Copyright Statute (1783); Maryland Copyright Statute (1783); Rhode Island Copyright Statute (1783); Pennsylvania Copyright Statute (1784); South Carolina Copyright Statute (1784); Virginia Copyright Statute (1785); North Carolina Copyright Statute (1785); Georgia Copyright Statute (1786); New York Copyright Statute (1786). []
  3. Edward Bloom, Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949). []
  4. The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974. []
  5. Harper & Row v. Nation Enterprises, 471 US 539, 558 (1985). []

66 Comments

  1. You make a good case that copyright was never a free speech issue in the past. But you don’t explain why.

    Well I can tell you why. Because the technology didn’t exist yet to make copyright a free speech issue. You are proving that it wasn’t a free speech issue in the 1850s, I don’t think anyone will disagree with that. That was the still the age of the printing press, the only people who could really violate copyright where people who owned expensive printing machinery, so basically copyright was an industrial regulation that didn’t apply to regular people.

    But as you say it’s become a free speech issue now. The Internet has made copyright a free speech issue. Consider Lenz vs Universal. That’s a copyright case fundamentally about free expression. It’s not copyright case you’d ever find in the 1850s.

    If you really serious about this, you need to consider how copyright law is used since the creation of the Internet. Case law from the 1850s is not going to reveal why people view copyright as incompatible with free speech today. It’s a different world today.

    On a more general sense disruptive technologies can have a profound affect on how law and societies opinion on them evolve. You should really research this aspect.

    • You are right, in that technology has transformed copyright from a special interest issue to a general concern – at least to the extent that Joe (present company excepted) Public can find himself afoul of copyright law.

      It is, however, more a question of perceptions than core principles; especially, since the battle remains a special interest case just the same as always – fought between businesses that seek to profit from copyright and those who seek to profit from its absence. Everything else is a smokescreen.

      • That’s not true at all. I was around in the 90s when “anti-copyright” didn’t have the big friends it has now. This movement has already existed back then and it was always a big part of the Internet nerd culture. It just didn’t have much political power till now.

        Pro-SOPA proponents like to pretend that Google and Facebook have the “Internet populace” brainwashed to work for them. But really, it’s the opposite way around.

        Look at GoDaddy, which where one of the few tech allies SOPA had. They went from being incredibly pro-SOPA to anti-SOPA, because random anti-SOPA people put significant economic pressure on them to change their views.

        • You just countered your own objection, and made Faza’s point…(whether you know it or not…)

          Here: “…put significant economic pressure on them to change their views

          It’s always been an economic issue.. NOT a free speech issue. The question is who should benifit ; the content creator, or the tech company who relies on content to sell its’ wares.
          I believe there’s room for both.. but not to the exclusion of the creator.

          • I mean that GoDaddy changed their views after a significantly publicized and widespread boycott of their services. This is the way politics should work, not big corporations and lobbyists influencing things but the people ultimately holding the influence.

    • A private corporation removing public access to a video of a baby dancing on their private website is a free speech issue?

      • Yes. That private corporation didn’t like their song being used in an unauthorized manner. They took down the video when the point of the video was not the song. The same as UMG taking down a video it didn’t like because it used artists under their contracts. If they want to impose limits on other’s speech, there is a 1st Amendment involvement in the matter.

        • Yes, but YouTube is a private company, not a public space. The government did not stop Lenz from making the video; they did not make her apply for a licence or get permission beforehand. Once Lenz made the video, she could show it to her friends. She could even try to sell or publicly display the video (though she would have to license the music). Posting it to YouTube is not integral to her freedom of speech. YouTube can reject her video because it is too long, or because it is not the right file type. As a private company, they can remove it after it is posted for any reason they want, whether it’s because they are being overly cautious about copyright infringement, or because they think the baby is a bad dancer.

          • “Posting it to YouTube is not integral to her freedom of speech. YouTube can reject her video because it is too long, or because it is not the right file type.”

            YouTube took down the video in response to a DMCA request by UMG. That the courts found to be issued in bad faith. Issuing a invalid DMCA request is illegal. Thus UMG is liable for damages.

          • YouTube took down the video in response to a DMCA request by UMG. That the courts found to be issued in bad faith. Issuing a invalid DMCA request is illegal. Thus UMG is liable for damages.

            To clarify, the court did not find that UMG’s notification was sent in bad faith. It denied UMG’s motion to dismiss Lenz’s claim — an entirely separate issue. In fact, the court even said in its order that it “has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi.”

            The case is still pending, and as far as I know, the court is currently considering whether to hold Lenz in contempt for allegedly failing to produce documents requested during discovery.

          • I would agree that’s it’s not strictly a 1st amendment issue. Free speech issue? Certainly.

            But free speech and the first amendment are different things – to claim otherwise is to claim that free speech only exists in the USA. :)

            First amendment interpretations are complex. Some way it only applies to the federal government, some say it only applies to (state, local, federal) governments directly censoring speech.

            But it could also mean that the federal government can’t produce laws that would result enable censorship (“Congress shall make no law”). Copyright could be seen a law that enables censorship, because it enables private entities to basically get injunctions on what amounts to (largely) creative speech and expression.

            It’s one thing to get an injunction against the distribution of a complete copy of Iron Man, it’s another to get on a injunction against a non-commercial home video with a dancing baby.

          • Even if the DMCA is invalid, YouTube is still free to remove the video if they do not want to deal with it. It was Lenz who made them put it back up and who went to court to prove it was a free speech issue. And in the end, the Supreme Court, the highest court in the land, ruled that you cannot use copyright laws to infringe on freedom of speech. How does that make copyright incompatible with free speech?

        • >>>If they want to impose limits on other’s speech, there is a 1st Amendment involvement in the matter.

          Have you ever READ the First Amendment?

          • Have you ever READ the First Amendment?

            Yep. It seems you might want to become more familiar with it.

    • Joe, there is no contradiction between free speech and copyright. The internet perfectly allows you to express your views and ideas in your own ‘unique and original’ way. Copyright only prevents you from slavishly copying other people’s ideas and knowledge.

      The fact that that the internet technology makes it easy to copy does not demonstrate that a) this is morally right, or b) or that it is beneficial in advancing the arts and sciences. On the contrary, unlimited ease of copying leaves the arts and sciences in a rut and is a disincentive to the pursuit of learning and the creation of new works, other than at a very shallow level.

      You cannot use a single case (Universal v Lenz) to support your assertion that the internet has changed the case for copyright. We can all argue about the merit of individual cases and whether or not one side to the action had pressed their case too far, or whether the judge got it right.

      What is indisputable (in my view) is that there is a centuries old strong moral and reasoned basis for copyright. The fact that the internet ‘machine’ was allowed to built without ANY recognition of the precepts of the law that have been accepted as just for authors and artists for centuries is where the problem lies.

      The internet was built purely as a technical solution for information sharing with no thought given to the precepts of justice built over centuries, or indeed of human rights. Yes, copyright is also a human right, a benefit to be enjoyed by everyone, including you, as a little research of the United Nations and other authoritative sites will reveal. It would have been simple to have built an internet machine that respected the human right of copyright, but it was left up to engineers to create the ‘machine’, now we have complaints from those who criminally exploit the machine when attempts are made to make it comply with the law.

      It is not entirely surprising there should be complaints. Don’t criminals complain when they are brought to justice? Was Google happy when it was fined $500M dollars for profiting from advertising promoting sites engaged in criminal activity? No need to answer these questions, the answer is self evident.

      The internet ‘machine’ is defective, attempts will be made to regulate it to comply with the moral requirements of justice. The precepts of justice have not ever, nor will ever be, changed by the mere invention of any machine. You are of course entirely free to refute my arguments and thereby enjoy your right to free speech, and the benefit of copyright for your expressions, which I will of course respect.

      Copyright law in no way impedes your right to attempt to demolish my arguments, your right to free speech is entirely unimpeded, you are free to express YOUR thoughts in response to me, and will continue to enjoy that right under any proposed internet regulations.

      • There is no “moral” basis for copyright (at least in the US). The Copyright Clause clearly states it’s purpose:

        “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

        The purpose of copyright is to promote progress. If it isn’t doing that – it shouldn’t exist. Oh, and the multiple copyright extensions over the last few decades is a total perversion of the idea of limited copyright envisioned in the Constitution.

        Regardless if you want to take the morality card, copyright is viewed as a highly unethical and immoral construct by some organized religions.

  2. Eric,

    They might be free to do so, but it would make them look bad (esp. in the eyes of their greatest supporters). YouTube has a concrete terms of service, if they work outside of that framework it would hurt trust in the service. Corporations can not do whatever they want – they have customers to answer to.

    “And in the end, the Supreme Court, the highest court in the land, ruled that you cannot use copyright laws to infringe on freedom of speech. How does that make copyright incompatible with free speech”

    Again it depends on the definition of freedom of speech. If they use mine, copyright would have no teeth. Because now I can write a novel that uses Mickey Mouse as a important character and be immune from the wrath of Disney. I don’t think that is the case.

    • Yes, if you redefine freedom of speech to include the right to infringe upon trademarks, than the wrath of Disney would infringe upon your freedom of speech. Just like if you redefine your right to assemble to include being able to enter your neighbor’s house in the middle of the night, than you can say being arrested for trespassing infringes your right to assemble. But your rights do not extend to allow you to infringe upon other people’s rights. Your right to free speech does not include your right to infringe upon someone else’s intellectual property rights. That is exactly what Terry has been writing about in this series; freedom of speech and copyright have existed side-by-side since the founding of this nation and do not, in fact, exist in opposition. The invention of the internet does not magically change this. You would have suffered the wrath of Disney for writing a novel using Mickey Mouse just as readily in 1940 as you would if you wrote one today.

      • I don’t think trademarks have anything to do with it. I could for instance, write a story where my character goes to McDonalds and buys a McChicken sandwich, despite both being trademarked.

        Why you can’t use Mickey Mouse is strictly a copyright issue (derivative works). There is a reason why copyright gets extended every time Mickey Mouse is due to be put into the public domain.

        • “Why you can’t use Mickey Mouse is strictly a copyright issue (derivative works). There is a reason why copyright gets extended every time Mickey Mouse is due to be put into the public domain.”

          For an anti-IP advocate, you don’t really display an understanding of the basics of the law. Your statement confuses the difference between copyright law and trade identity law.

          Even when “Steamboat Willie” falls into the public domain, Mickey Mouse does not. That’s because Mickey Mouse is protected by trade identity law, which can persist indefinitely. So feel free to copy and distribute “Steamboat Willie” to your heart’s content, but if you think you can create derivatives or write new stories containing Mickey Mouse, you’re simply wrong.

        • No, Mickey Mouse is trademarked. Even if his individual cartoons fall into the public domain, you still can’t use the character of Mickey Mouse commercially without Disney’s permission as long as they maintain their trademark.

          And I didn’t say free speech is “any speech that doesn’t conflict with the law.” I said “your rights do not extend to allow you to infringe upon other people’s rights.” Big difference. I’m no stranger to breaking the law for freedom of speech, but infringing upon other’s rights to exercise your own goes against the very notion of what a right is.

        • @Jason

          It is my understanding that once Mickey Mouse goes into the public domain, Disney will have difficulty controlling derivative uses of this character. It is possible that trademarks apply to characters in literary and film works, but I’m the situation becomes more complex internationally and my understanding is fair use in trademark law is far more forgiving then fair use in copyright law. Regardless it would not be a good thing for Disney’s control of their character, which is why they lobby for extensions every time it gets close to public domain.

          @ Eric Hart

          I think I need to define some things here: Freedom of Speech, Good Thing, Bad Thing, First Amendment and Censorship.

          If I write something or say something and I get in trouble for it that is a violation of my Freedom of Speech. If attempts are made to get me to stop distributing this speech, that is Censorship.

          Why you may be opposed to this definition could be these days, part of the “hidden” definition of Freedom of Speech is that it is a Good Thing and part of the definition of Censorship is that it is a Bad Thing.

          But yelling “Fire” in a crowded theater is a Bad Thing (in my opinion), and yet acting on this Bad Thing is Censorship and a violation of Freedom Of Speech. So is Censorship a Good Thing? Maybe sometimes it is.

          That being said, Copyright is certainly a violation of Freedom of Speech, and getting an injunction on a work that violates Copyright in some way is Censorship. Is this a Bad Thing or a Good Thing? Your opinion is that it is a Good Thing, mine that it is Bad Thing.

          First Amendment is does not offer complete Freedom of Speech. Part of what Terry is trying to do is show that Copyright is compatible with the First Amendment.

          • “It is my understanding that once Mickey Mouse goes into the public domain…”

            Public domain refers to copyright. There is no such thing as a public domain with regard to trade identities. Steamboat Willie will go into the public domain. Mickey Mouse, however, will not.

            “Disney will have difficulty controlling derivative uses of this character.”

            No it won’t. Copyright doesn’t apply to Mickey Mouse, it only applies to the movies in which he appears. And even though those underlying movies may be in the public domain (allowing you to copy and distribute them freely) there is likely no derivative work that you could produce that wouldn’t run afoul of the trademark protection of Mickey Mouse himself given his famous mark stature.

          • Public domain refers to copyright. There is no such thing as a public domain with regard to trade identities. Steamboat Willie will go into the public domain. Mickey Mouse, however, will not.

            Public domain refers to more than just copyright. For example, once a patent expires, the invention falls into the public domain. And once a trademark becomes generic, the mark can fall into the public domain. You could even say that once a trade secret becomes known, it falls into the public domain. The public domain is basically just intellectual property (whether copyright, trademark, patent, or trade secret) that is not privately owned.

          • Robert Bienstock

            “It is my understanding that once Mickey Mouse goes into the public domain, Disney will have difficulty controlling derivative uses of this character. It is possible that trademarks apply to characters in literary and film works, but I’m the situation becomes more complex internationally and my understanding is fair use in trademark law is far more forgiving then fair use in copyright law. Regardless it would not be a good thing for Disney’s control of their character, which is why they lobby for extensions every time it gets close to public domain.”

            Note that you started this with “it is my understanding,” yet you don’t seem to be able to accept that your understanding might be wrong. Let’s forget about the trademark argument (though I think it is valid) and just look at copyright. Once Steamboat Willie goes into the public domain (and it will do so eventually), the character of Mickey Mouse will still be protected by copyright because of all the subsequent uses of the character in other works. Now these subsequent works are derivative, and only protect the new aspects of the Mickey character introduced in the subsequent, but the Mickey character as we know it today developed over a period of decades, and you couldn’t use those newly created aspects in your new work even after Steamboat Willie is PD.

            And the claim that Disney argues for an extension of copyright to keep Mickey protected was simply a lie advanced to color public opinion against term extension. Mickey represents a tiny fraction, at best, of Disney’s revenue from copyright and I’ll wager that they could care not a whit if people start distributing PD versions of the old Mickey cartoons, which in many cases aren’t even in print any more.

          • @Robert

            That’s true, but they couldn’t claim copyright over Steamboat Willie’s Mickey Mouse.

            I’m not convinced trademark can apply to creative works. Maybe it would prohibit you from using Mickey Mouse in a symbol for some kind of product, but that’s not the same is prohibiting you from writing a story about Mickey Mouse. That seems to be almost entirely a derivative works issue under copyright law.

          • I’m a bit cynical about the idea of unlimited copyright on the installment plan ending when the issue comes up again.

            Perhaps by then the anti-copyright lobby will be powerful enough to defeat any attempt to extend copyright law. But regardless 95 years copyright is excessive.

            My proposal is that copyright as a whole is reduced to be more in line with patent durations (20 years), and that fair use is expended to mean non-commercial and open source use of a copyrighted work is always legal (basically, legalizing filesharing). A tax on Internet access could fund creative industries.

        • Joe wrote: “I don’t think trademarks have anything to do with it. I could for instance, write a story where my character goes to McDonalds and buys a McChicken sandwich, despite both being trademarked”

          Right.. but go ahead and try to open a resturant called ‘McDonalds’ with the golden arches and all, and sell ‘McChicken’ sandwiches -without paying the Franchise fees/dues…

          • I am well aware that you can’t start a McDonalds without McDonald’s permission, but that’s the same thing as writing about McDonalds. The word “trademark” should probably give away what it’s purpose is.

            Pro-IP people like to conflate all the very different laws (trademark, copyright, patents, etc.) into one giant mess of “intellectual property” as if they have any relation to one another. Fact of the matter is they are different laws that protect different concepts in different ways. Copyright is what creative works fall under, not trademarks or patents.

          • same = not the same

    • Joe wrote: “Again it depends on the definition of freedom of speech. If they use mine, copyright would have no teeth. Because now I can write a novel that uses Mickey Mouse as a important character and be immune from the wrath of Disney. I don’t think that is the case.”

      … err…
      “If they used YOUR definition” ???
      Heck, i’m mad they don’t use ‘My’ definition of copyright. You know… the right to manufacture and distribute heroin.. That’s my definition.. or what about ‘to freely rob and set fire to thy neighbors house’… why does nobody respect my ‘right’ to my own made up definitions of the law?

      *rolls eyes*

      • It seems like an increasingly growing number of people are fed up with the current copyright and patent systems so I don’t really feel alone in this.

        • You don’t feel alone? In what? your MISunderstanding?

          I’m mad about copyright myself.. but for a Totally different reason.
          I’m mad because IT IS NOT BEING ENFORCED. what good is paying the copyright office, for a federally and internationally recognized law, if there’s essentially zero enforcement?

          Big technology companies, that have done absolutely nothing innovative, use a loophole in the law to become rich while essentially stealing others’ labor.

          • ICE is sure doing a swell job of enforcement.

            Along with DHS in showing new ways to make money.

            It’s pretty laughable that you say big technology companies have done nothing innovative when they’re the ones making new ways for artists to figure out a way to make money on the internet.

            Oh, I guess the Big Three labels get a pass since they can’t figure out how to pay more money to radios, enforce copyright through ASCAP, SESAC, and BMI, or get ICE to seize more domains unlawfully.

            Yeah, copyright enforcement… The future of the world.

          • “I’m mad because IT IS NOT BEING ENFORCED. what good is paying the copyright office, for a federally and internationally recognized law, if there’s essentially zero enforcement?”

            There is a website that lists laws that aren’t enforced anymore. Some of the laws on the books are damn funny. Maybe copyright should be added to it?

          • I meant to type in “Like GrooveShark et al” after innovative ^

            There are entire start-up tech companies that use the loophole in the law to steal works, build up their buisness… sell it off, and let someone else sort out the legal. These companies do nothing “innovative”, and should be brought to justice.

          • There are entire start-up tech companies that use the loophole in the law to steal works, build up their buisness… sell it off, and let someone else sort out the legal. These companies do nothing “innovative”, and should be brought to justice

            Name three and how they skirt the law.

  3. I also question your definition of freedom of speech. It seems to be “any speech” that doesn’t conflict with the law”. Which of course, misses the point of freedom of speech.

    • That’s what I’m getting too… “You have freedom of speech so long as it doesn’t interfere with someone else’s freedom of speech to take down yours.”

      Rather misleading…

      • Actually, what is misleading in the context of “internet ‘speech'” is the constant conflation of “freedom of speech” with “freedom of the press”, two very closely related concepts…but quite different at the same time.

        • What is this “internet speech” you speak of?

          People are free to express an idea and talk about an experience. That’s speech. That extends to making a movie, using music, or creating videos to show that experience.

          Somehow, you seem to believe that “freedom of the press” is different from “freedom of speech”. I’m interested in hearing an explanation of why.

          • D.H. has posted a link to Eugene Volokh’s paper. Section 1E explains the distinction between the two. Eugene also has two articles on his site that add insight into the contents of his paper. The same can be said of several comments regarding his articles.

  4. While not on point, you may wish to consider perusing Gene Volokh’s recently published article concerning “freedom of the press”. There is a link at his website, The Volokh Conspiracy.

    • Seconded. I’m about halfway through. It’s a great read: http://www.pennumbra.com/issues/pdfs/160-2/Volokh.pdf

      • While I appreciate people digging through history about how people thought hundreds of years ago, I’m thinking of the future.

        The fact is the Internet and computers didn’t exist (or couldn’t be imagined) when these opinions were rendered.

        This is a world where a person can carry a whole library worth of books in his pocket, and make another copy for someone else in minutes. This represents quantum leap over the printing press and industrial era when it comes to reproducing information.

        I just wish instead of fighting this technology you all would embrace it. It’s hard to put the genie back into the bottle, people who grew up with technology aren’t going to back to a world of artificial scarcity.

  5. Terry, I’ve greatly enjoyed your “Copyright and the First Amendment” series. Keep up the great work!

  6. As a UK citizen, I don’t feel inclined to fetishise the First Amendment. But surely no-one imagines that there is, or should be, absolutely unlimited freedom of speech, or that the framers of the First Amendment thought so. Various exceptions to unlimited freedom of speech are recognised by the law in the Unites States and elsewhere. Libel, violation of privacy, and breach of confidentiality are examples. Interestingly, the right of privacy has been developed by the American courts as a common law doctrine whereas the English courts ultimately decided that under common law there is no general right of privacy. Freedom of speech may also be abridged by contractual agreement or professional obligations, for example a ‘non-disclosure’ clause in a contract, or the duty of confidentiality owed by doctors and lawyers. The case of contractual agreements is relevant to copyright, since books, records, software, etc, are usually subject to terms and conditions which include a ‘no copying’ clause.

    I think it is best therefore to accept that copyright law does restrict absolute freedom of speech, but in a rather trivial way – since the substance of any ideas can still be communicated without breaching copyright – and for legitimate reasons. It is noteworthy that the European Convention of Human Rights, after stating a general right to freedom of expression, explicitly goes on to qualify this by the need to respect other rights and interests: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

    It’s not exactly a thrilling piece of prose, but it does have the merit of recognising that rights may conflict, and that ‘freedom of expression’ does not automatically trump all other rights.

    • Yeah well it’s true, I’m not a freedom of speech absolutist either. But when someone uploads a video of their baby dancing to a 30 second clip of a Prince you know what? I’m going to call that censorship and generally a bad kind of censorship that isn’t really going to help anyone. If this is the kind of copyright you support I don’t want anything to do with it.

      • Since you did bring this up, let’s get it out of the way once and for all: the Lenz case is bullshit, both as a copyright issue and a free speech issue.

        It should be fairly obvious why it is a bullshit copyright case – the infringement therein was hardly worth pursuing and doing so wasted everybody’s time and left a lot of bad feeling. This is exactly the kind of PR disaster you want to avoid if you have genuine grievances.

        That said, trying to paint it as a free speech issue is even more absurd. Imagine a scenario where YouTube suddenly decided they want to charge users for hosting videos and take down anything posted by those who don’t pay. Is that a freedom of speech violation? No, because your freedom of speech does not place any obligation on third parties to provide you with a platform for speaking. YouTube’s rights to their web properties include the right to determine what gets posted. Free speech doesn’t trump property rights. And for exactly the same reason free speech doesn’t trump copyright – the two interests will need to be balanced, based on the merits of the case.

        Lastly, dancing babies really aren’t a policy concern for anyone who has anything remotely serious on their mind. There is content that YouTube will simply not allow you to post, based on their ToS, that fits the “censorship” mantle a lot better – pornography, say, or certain radical political views. The question whether Islamic millitants, say, should be permitted to freely voice their political programme is a genuine free speech concern – the classic form of censorship is stifiling any speech that isn’t to the liking of the incumbent government, such as alternative political proposals (setting aside just what they might be). Home videos of people’s children – not so much.

        • Actually, Lenz was not a, as so many call it, a “bs” case. Unfortunately, the issue involved purely issue of law bearing virtually no relationship to the upload itself.

          Experience informs me that DMCA notices are routinely sent out as a matter of administrative course, and as such simple odds make it virtually certain that on occasion one will go out that should not have given the nature of the subject matter involved.

          In Lenz a notice went out, a counter notice was filed, and the video once again was reposted on YouTube. It should have ended there, except for the fact that an internet version of the ACLU saw it as a chance to make a mountain out of a molehill, leaving UMG with little choice but to enter into a legal “fight” in which it had no desire to engage. Why? Because the group who undertook representing the uploader pro bono were trying to create modicum of a legal precedent, using a trivial upload as a means to create such precedent in order to attack the DMCA while causing embarrasment to rights holders in general.

          The precedent? Trying to get a court to go on record that a rights holder must consider to some degree the possible applicability of fair use before sending a takedown notice, and that failing to do so could subject a rights holder to liability for takedown notices not sent in good faith (a subjective standard that is almost impossible to prove except in the most egregious of circumstances). This was not such a circumstance, as the court rightly held.

          In other words, this was opportunistic litigation that backed UMG into a corner that left it with no choice but to enter the fray and present arguments of law having virtually nothing to do with the specific upload.

          Historically, fair use has been viewed as an affirmative defense, placing the burden on the alleged infringer to raise it as a defense to a charge of infringement. Counsel representing Lenz sought a court holding to try and make a crack in this general rule, which if successful would shift the burden in part to rights holders. Just how much the burden would shift was not known, so UMG was placed in the unenviable position of having to address this attempt at burden shifting in order to ameliorate its scope if such a holding resulted.

          By focusing specifically on the content of the upload, “it is a baby dancing for God’s sake”, the important underlying legal issue was effectively withheld from the public in the hope of distracting the public from the real issue at hand. Never mind that the matter had been quickly resolved via the notice, counter notice provisions of the DMCA (in other words, the system worked), counsel representing Lenz was out for “blood”, and, unfortunately for UMG, it just happened to be in the wrong place at the wrong time.

          Except for its PR value, the practical effect of Lenz? None. Of course, it does provide anti-label fodder for those who view labels and studios as “big, bad meanies out to deny “culture” to the masses”.

          • Except for its PR value, the practical effect of Lenz? None. Of course, it does provide anti-label fodder for those who view labels and studios as “big, bad meanies out to deny “culture” to the masses”.

            Take note, the Righthaven cases has far more fair use legality than the Lenz case has simply because they botched everything so badly.

          • Without strong penalties there is nothing stopping “rights holders” from abusing the DMCA takedown system (which, IMO shouldn’t exist in the first place).

          • “Without strong penalties there is nothing stopping “rights holders” from abusing the DMCA takedown system”

            There are both civil penalties (actual damages, attorneys fees, costs, etc) and criminal penalties (for perjury in the notice). If those subject to knowingly misrepresented takedown notices fail to avail themselves of those remedies, the problem lies with them, not the system.

            And perhaps you would like to be more specific as to the “abuses” of the DMCA takedown system that you refer to in the general. Do you have any statistics to back that claim up?

          • And perhaps you would like to be more specific as to the “abuses” of the DMCA takedown system that you refer to in the general. Do you have any statistics to back that claim up?

            The case of Lenz says that recompense for damages are available, just limited.

            Then there’s the cost of three strikes in blocking access to someone’s account. This has happened about six times for one video reviewer who decided to show how wrestlers botch (mess up) moves.

            Quite a number of gamers have false copyright claims taken against their accounts for putting up videos of games. Most game developers don’t care since that’s free advertising and sometimes people figure out that false claims are from those that troll the gamers. Then there’s Chilling Effects, which shows all takedown complaints, and Youtomb which shows all the videos taken down so far. Obviously, it should be noted that Google’s Transparency Report shows exactly how many takedown requests were made in a year as well.

          • @Jay

            Thanks for providing those references. I knew about Chilling Effects but not Youtomb.

            @ Jason
            And you see nothing wrong with the fact that issuing a DMCA request does not require getting a court order (or any form of due process really), but fighting damages caused by the DMCA takedown does? That just doesn’t seem fair at all.

          • @Jay

            “The case of Lenz says that recompense for damages are available, just limited.”

            Quite to the contrary, the court says that a wide array of damages are available. First, the court read the statute as allowing a pre-litigation award of attorney’s fees for everything leading up to the lawsuit. Second, the court read a wildly broad interpretation into the statute allowing for even recovery of non-economic damages proximally caused by the takedown. Finally, the court made clear that the Copyright Act allowed for post-litigation recovery of attorney’s fees and costs as well.

            “Most game developers don’t care since that’s free advertising and sometimes people figure out that false claims are from those that troll the gamers.”

            That’s a generalization, not a citation to specific instances. Additionally, your characterization of “sometimes” leads to the interpretation that other times they come from the copyright owners, in which case they do care.

            “Then there’s Chilling Effects, which shows all takedown complaints”

            I asked for specific instances and statistics regarding abuse. A site that merely posts notices sent to it, most of which are probably perfectly legitimate, doesn’t support your argument that abuse is rampant in the system.

            “Obviously, it should be noted that Google’s Transparency Report shows exactly how many takedown requests were made in a year as well.”

            You mean the transparency report that, for the most recent time frame of January to June 2011, involved all of 2 takedowns of copyrighted material? That similarly does not sustain an argument for abuse.

            @Joe

            “And you see nothing wrong with the fact that issuing a DMCA request does not require getting a court order (or any form of due process really), but fighting damages caused by the DMCA takedown does? That just doesn’t seem fair at all.”

            You’re being disingenuous in your description of the remedies available to the recipient of a takedown notice. It doesn’t cost the recipient anything to respond with a counter-notice, at which time the entity serving the takedown notice is forced to put up or shut up. They can do nothing, at which time the service provider is required to restore access to the material taken down. Or, they can file suit, costing them money. And because it’s a copyright suit, if they lose, then the defendant can move to have their costs and attorney’s fees paid. Additionally, the service provider is also liable for damages if it doesn’t comply with its obligations under the law.

            Assuming the recipient chooses not to take the no-cost counter-notice option, they can choose to both file criminal charges and civilly litigate an allegedly misrepresented notice. Because the provisions allow them to recover pre- and post-litigation attorneys fees, and all costs associated with the litigation, in addition to both economic and non-economic damages resulting from the alleged misrepresented takedown, yes, I do think it’s fair.

        • Faza,

          If YouTube’s ToS is not compatible with what you are posting there is a hundred other video sites out there. But you see DMCA is not a ToS construct, it’s legal construct that no website (at least in the US) can “opt-out” of enforcing (at least without being knocked out of existence SOPA-style). So it is very much a free speech issue.

          • Do you mind connecting some dots there?

            How you go from ToS to Freedom of Speech issue would impress Harry Houdini…

          • It would probably help if you read Terry’s posts on the subject all over again and tried to understand them this time, Joe.

            Freedom of speech is not absolute – a right to trump all others. You might get sued for libel, for a start. Then there are those categories of speech that are not protected. Finally, as Terry has sought to demonstrate, it is a long established principle in U.S. law that freedom of speech – or the press – does not immunise one from infringement liability.

            The Lenz case cannot even be construed as a prior restraint, since she published first and had her video taken down after it was posted. Moreover, as Pro Se has rightly pointed out, the notice-counternotice system worked: UMG thought the video was infringing, Lenz didn’t – following the DMCA shuffle, the situation was restored to the status quo ante, leaving the way open to legal action for infringement, had UMG decided to pursue it. The DMCA actually gives a knowing infringer an out, because once he notices that the rightsholder is onto him (his infringing content is taken down), he can simply refrain from further confrontation and thus potentially escape a lawsuit (going after each and every individual infringer is hardly something a label wants to do nowadays).

            The facts of the matter are that the song is copyrighted and that Lenz knew she did not own the rights. She may not have known that her video might be subject to a takedown notice, but ignorantio legis nocet. Synchronisation rights are the exclusive property of the copyright holders, so including a copyrighted song in your video (even if it’s only playing in the background) might be an actionable infringement. A determination whether it was fair use or not would ultimately require a court ruling, since it is a fact-based issue with only broad legal guidelines.

            In short, the responsibility for what Lenz posts to the Internet rests on Lenz alone. There is no reason to abridge the constitutional rights of copyright holders in order to minimise the inconvenience of her speech choices. She had an option of countering an infringement claim that she exercised, so what is the problem?

          • Faza,

            You are confusing “Freedom of Speech” with “First Amendment”. If you notice his blog post, he is talking about the First Amendment and how Copyright is not incompatible with it. And his argument actually has a lot of merit, it’s very well researched and detailed. But I repeat: it’s not the same thing as saying copyright is in conflict with Freedom of Speech. That fact is obvious, and the reason why such detailed refutations of Terry’s went to great lengths to try to show that Copyright does not conflict with the First Amendment.

            In the USA copyright is not absolute. That is there are many uses of a Copyright work that a right holder has no ability to control. These uses are called Fair Use. I’m not going to go into detail about Fair Use, but the fact that the video was a derivative work (a very strong one at that), the fact that it was non-commercial, and the fact that in only used something like 30 seconds of a song make it Fair Use. So, UMG has no right what-so-ever to file a DMCA notice and can be liable for damages for filing it in the first place.

          • The prime argument that copyright is not compatible with the First Amendment is the the fact that the First Amendment is an amendment to the Constitution, so it would overwrite the Copyright Clause. However since the Bill of Rights and the Constitution were pretty much passed together, there is the argument that the Bill of Rights does not undo anything in the Constitution. That’s a fair argument (also considering that copyright lasted 200+ years without any attack on it’s Constitutionality).

            So I don’t really feel to make a constitutional argument against copyright. My arguments against copyright is simply that it is not workable in the information age. Something that could be workable would be a tax on Internet access or something like that. I find that this is incredibly unpopular but honestly I haven’t heard of anything better. And no, trying to gimp the Internet and technology isn’t better.

          • “but the fact that the video was a derivative work (a very strong one at that)”

            With respect, I don’t feel that you understand copyright law at all. The work was not a derivative because it didn’t involve a recasting, reformation, or similar transformation of a pre-existing work.

            If you wish to analyze it under the fair use doctrine, that’s fine. But please do so understanding that the starting point is realizing that the direct copying of the song in the background implicates the reproduction right, not the derivative work right.

          • With respect, I don’t feel that you understand copyright law at all. The work was not a derivative because it didn’t involve a recasting, reformation, or similar transformation of a pre-existing work.

            That’s the same weak argument that Universal used in their argument in regards to fair use.

            This ignores what Joe is stating: the noncommercial use of the 29 second video has no affect on the commercial availability of the song.

            The song is not the focus of the video, the baby is.

            It’s like saying the woman (Samantha Tumpach) that was arrested for recording Twilight got what she deserved for 3 minutes of video in a movie theater.

          • “That’s the same weak argument that Universal used in their argument in regards to fair use.”

            I’m not sure how correcting a misunderstanding of the difference between reproduction and derivative work rights constitutes a weak argument. By definition, a derivative work is one “in which a work may be recast, transformed, or adapted.” Rote copying can never be a derivative.

            And could you please point to the section in Universal’s moving papers where they advance a fair use argument based on the derivative work right?

            “This ignores what Joe is stating: the noncommercial use of the 29 second video has no affect on the commercial availability of the song.”

            That presumes that the “effect” on the commercial availability of the copyrighted work is the only determination that must be made. It isn’t. Fair use is a four factor test, the economic impact of which is the least important. The others tend to weigh against fair use, in that music is close to the core of copyright protection, the video used the heart of the copyrighted work, and the use was completely mechanical and non-transformative.

  7. I seem to recall reading somewhere sometime ago that, historically, this subject was discussed by our founding fathers. Benjamin Franklin, in some of his writings, discussed this issue during the revolutionary days. So, as I recall, the contention that this is a relatively new matter of concern, would be incorrect. It would be fair to say again: “There’s nothing new under the Sun.” Thank you for this opportunity to express some of my opinions and comments in this fashion. John Swatek. P.S. However, on the other hand, my recollections are always suspect. They say that one’s memory is the first to go. But, I can’t remember why. Ha, ha.. LOL.

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