IP MEMES: Intellectual Property And Everyone's Favorite Constitutional Amendment
Monday, March 22, 2004 at 6:28AM (My March contribution to the weekly IP Memes newsletter follows.)
The collision of First Amendment and intellectual property law can lead to interesting and sometimes strange results. In cases where First Amendment protections are urged for an original work of authorship, questions arise about whether the work is expressive in nature or intent (e.g., "code as speech"). In other instances, the copying and use of the work by another brings the First Amendment into play. This issue of IP Memes looks at the California Court of Appeal's recent decision in DVD Copy Control Association v. Bunner and other recent intersections of intellectual property law and the First Amendment.
BUNNER: INJUNCTION AGAINST POSTING CODE PLACED UNNECESSARY BURDENS ON SPEECH
DeCSS is a now famous bit of code attributed to Norwegian Jon Lech Johansen. It undoes the copy protection (CSS) included in commercial DVDs. DeCSS spread rapidly on the Internet and elsewhere (including washable/wearable formats) from October 1999 onward. Defendant Andrew Bunner was one of many who posted DeCSS on his Web site, and was sued for misappropriating trade secrets of the DVD Copy Control Association, a consortium of entertainment and technology companies. Although initially enjoined by the trial court, Bunner claimed an expressive purpose in posting the code and appealed, contending the injunction infringed his free speech rights under the state and federal constitutions. The Court of Appeal agreed, noting the lack of evidence of trade secret status, and concluding an injunction would burden more speech than necessary to protect the CSS property interest. Although the speech at issue was the posting of the code, as opposed to the code itself, it's worth noting that computer programs generally are considered "literary works" for copyright purposes.
Links:
- DVD CCA v. Bunner (PDF)
- Court rejects ban on DeCSS
- Ban on posting of DVD cracking code overturned
- Court to Address DeCSS T-Shirt
- Got DeCSS? t-shirt
- Perl DVD decryption t-shirt ("I am a circumvention device forbidden by 17 USC 1201(a)(2). Do not manufacture me, import me, offer me to the public, provide me, or traffic in me or in any part of me.")
- The Problem of "Symbolic Speech"
- Freedom of Expression: The Philosophical Basis
- What Works Are Protected?
- Is Code Free Speech?
- EFF Archive, Bernstein v. Department of Justice (First Amendment protection urged for class materials on encryption posted to the Internet)
(Thanks to Frank Paynter for inspiration, links, and further discussion.)
SO FAR, FIRST AMENDMENT NO SHIELD FOR 321 STUDIOS
321 Studios takes DeCSS to the next level by making and selling a product that helps consumers get around the copy protection on their DVDs. On 2/19/04, District Judge Susan Illston rejected 321's argument that provisions of the Copyright Act, if interpreted to bar the sale of DVD Copy Plus, violate the First Amendment: "the First Amendment does not protect commercial speech that involves illegal activity, and this court has found that the CSS circumvention portion of the 321 software is illegal." 321 Studios is appealing Judge Illston's determination.
Links:
- EFF Archive (including 2/19/04 order)
- 321 Studios re the lawsuit
- 321 Studios re the appeal
THIS ACT WILL SELF DESTRUCT
The proposed Database and Collections of Information Misappropriation Act (H.R. 3261) acknowledges that prohibiting the misappropriation of databases (traditionally considered to contain factual, noncopyrightable material) may violate the First Amendment, and includes a provision repealing the Act should the Supreme Court so find.
Links:
PARDON MY PARODY
Robert Cox needled the New York Times with a parody site, purporting to provide various op-ed corrections, that mimicked the look and layout of a real Times page. Despite initial receipt of a DMCA cease and desist letter, Cox now reports the Times has acknowledged his parody is protected by the First Amendment.
Links:
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