Copyright & the First Amendment | Freedom Forum Institute
Is the right to property a more or less important card in the human rights pack than the Article 10 right to freedom of expression? Copyright law strikes its own balance between an author's right to property and the The court ruled that the Sun's publication of the photographs would have been "mere. Wide margin of appreciation to balance fundamental rights the online publication of pictures taken at fashion shows without the law on the relationship between copyright and freedom of expression. My article examines the legal dispute between Copiepresse and Google before the Belgian courts. The question becomes how to balance these two legal areas. that person has trespassed on the creator's property, or copyrighted expression. .. The Motion Picture Association of America demanded that Internet service.
But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. Parodies present difficult copyright cases because a parody by its nature copies material from a previous work. Courts ask whether a new work adds something new, or transforms, the prior work.
In other words, the courts determine whether the parody is transformative. Acuff-Rose sued Campbell and his record company for copyright infringement.
Campbell countered that his parody was fair use. A federal district court judge agreed with this argument, writing: However, on May 25,a three-judge panel of the 11th U. Circuit Court of Appeals overturned the injunction, writing: An elusive doctrine Even though 2 Live Crew and Alice Randall at the preliminary injunction stage prevailed in the federal courts, both cases required extensive litigation.
Courts will decide the application of the fair-use doctrine on a case-by-case basis. The concept of fair use is flexible and hard to define. A recent federal court decision explains: Others think about the regulation of hate speech on the Internet. But some experts believe the greatest danger to free speech on the Internet comes from copyright.
The cost of copying has come way down as technology has improved. Many involved in intellectual-property issues, particularly owners of content, feared and still fear that the Internet would lead to widespread copying. They pushed Congress to enact legislation that would restore greater control to copyright owners.
This push eventually led to the adoption of the Digital Millennium Copyright Act of This federal law makes it a crime to write and sell devices or software to circumvent a copyright-management system.
When does freedom of speech trump copyright? | Media Network | The Guardian
Critics charge that the DMCA radically alters the balance of copyright law between content owners and the general public by giving too much control to copyright owners. They argue that the anti-circumvention provisions block competition and the development of new technology. For example, they cite the rise of piracy in the use of peer-to-peer software like Napster that facilitates copying of material.
For example, Lawrence Lessig writes: We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. Or a certain space for individual freedom? DVDs contain copies of the motion pictures in digital form.
The studios protect these motion pictures from copying with a technology-protection encryption system called Content Scrambling System CSS. DeCSS enables people to play DVDs on their players and computers even if their players lack the licensed decryption technology.
Eight movie studios sued several of these Web site operators, claiming that their posting of DeCSS software violated provisions of the Digital Millennium Copyright Act.
Section a 2 of the Copyright Act provides that: Defendants also argued that their posting of the DeCSS software should qualify as fair use. The judge recognized that the DMCA limits the ability to make fair use of copyrighted material.
Congress, however, clearly faced up to and dealt with this question in enacting the DMCA. Hence, there is a potential tension between the use of such access control measures and fair use. The defendants also argued that issuing a court order to stop the posting of speech DeCSS would amount to an unconstitutional prior restraint on speech.
When does freedom of speech trump copyright?
Circuit Court of Appeals. The defendants make many arguments on appeal, including: DeCSS is truthful speech on a matter of public importance that cannot be suppressed unless the government meets the highest constitutional standard of strict scrutiny. The injunction is overbroad because it bans all publication and even linking to DeCSS.
Napster allowed individuals to locate and share these MP3 files across the Net through its MusicShare software. Many record companies sued Napster, alleging that the company facilitated widespread piracy of its copyrightable material.Freedom of Speech: Crash Course Government and Politics #25
The record companies asked a federal judge to issue an injunction prohibiting Napster from operating until the lawsuit was resolved. The district judge sided with the record companies. On appeal, the 9th U. In copyright law, there can be no contributory infringement without direct infringement by another.
Napster argued that many of its consumers were fair users because they were merely space-shifting when a customer copies songs she already owns onto a more portable media and sampling testing the music to decide whether to purchase it.
Napster argued that the Supreme Court decision of Sony Corp.
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Universal City Studios supported its arguments. The entertainment industry had tried to hold VCR manufacturers and retailers liable for copyright violations. The high court rejected the argument even though it noted that VCRs were used to facilitate copyright infringement.
For example, the American Physicians and Surgeons Inc. Lawrence Lessig argues that it is dangerous for a court to ban a technology based on its current use — even if that use leads to widespread copyright violations. He points out that under this rationale, early Internet technologies, the VCR and the Xerox machine would have been banned.
Copyright law strikes its own balance between an author's right to property and the public's right to information, but copyright is by its nature an interference with the right to freedom of expression. The Ashby Donald decision In the Ashby Donald case, three photographers were convicted by a French court of copyright infringement after publishing unauthorised catwalk photographs on a fashion website.
French copyright law as one might expect gives specific protection to fashion designs. The ECHR held that the claimants' Article 10 rights had not been infringed, the publication of the photographs being purely commercial and not a contribution to any important topic of public debate.
In different circumstances, however, the human rights balancing exercise between the right to freedom of expression and a copyright owner's property rights could fall the other way.
Copyright injunctions and free speech Similar issues arose in the English court, also last month, in the RocknRoll case. This was primarily a privacy case brought by Ned RocknRoll husband of Kate Winslet to prevent publication by the Sun of embarrassing photographs of the claimant taken at a party and posted by a friend on Facebook.
The claimant succeeded in preventing publication of the photographs by the Sun, following the required balancing by the court of his Article 8 right to privacy with the Sun's Article 10 right to freedom of expression. The court ruled that the Sun's publication of the photographs would have been "mere titillation" rather than a contribution to any legitimate matter of public debate, so publication was prevented.
RocknRoll had taken the sensible precaution of procuring an assignment of copyright in the embarrassing photographs from his friend who had taken and posted them. He had thereby become both subject and owner of the photographs, with unusually two arrows in his legal quiver: The copyright issues were not discussed by the judge in any detail because the main case against the Sun in privacy matters was overwhelming.