The ACLU blog fights for online service providers and content owners to safeguard free speech, as record amounts of individuals are using the "publically accessive but privately owned" arenas to discuss matters of governmental and political importance. The public, then, relies on service providers etc. to protect such free speech, which lately has been threatened for violating a site's terms of use or infringing copyright. The blog lists recent examples, such as YouTube's removal of a video about John McCain that used images necessary for commentary on the canditates support of the war in Iraq. The blog implies that such a video is fair use and as political commentary it should be permitted, but the video was taken down regardless. The authors of the entry, Nicole Ozer and Corynne McSherry, of the Electronic Frontier Foundation (EFF), push content owners and providers to assess whether such speech is fair use before "pulling the plug on political speech." Further, they acknowledge that those who wish to restrict others' free speech can instead exercise their own constitutional rights and respond with more free speech, thus serving the democratic process.

This post in the ACLU blog supports the notion that, at least in some circumstances, copyright protection can hurt the public interest. The constitution protects free speech, and exercising this right in the political realm is certainly protected. To suppress this right hurts not only the First Amendment, but also the public interest. By censoring political speech and opinions, copyright protection does not foster a fully free election in which, throughout the campaign, the public has appropriate access to information necessary to make a decision on who to elect and what policies are best. The policies and the people making them are crucial to the interests on the country, hence the public interest, and, according to this argument, copyright does not serve the public interest by restricting individuals' First Amendment rights.

This article focuses on trademark law opposed to copyright law. While trademark and copyright are distinct, the argument for the protection of one has significant bearing on the argument for the protection of the other. Since this article argues against the protection of trademarks in political speech, it will have an impact on the topic of copyright in political speech, which contributes to the larger picture of copyright and the public interest.

Smith argues that the First Amendment should protect the use of trademarks in political campaigns. Trademark owners argue that use of slogans diminish the product's selling power by way of multiple associations. While such an argument is valid in holding a commercial organization responsible for infringment, it does not apply to political campaigns. This article holds that "the First Amendment should shield politicians' use of commercial slogans in speech that promotes their candidacies or conveys their positions on issues of public importance." In the discussion of campaign speech, Smith notes that the Supreme Court consistently supports the First Amendment's purpose to protect "free discussion of governmental affairs," which includes discussion of candidates. She also notes that political advertisements cannot be censored. Smith acknowledges the view that "the First Amendment does not protect all political speech; the theft of or trespass onto the mark constitutes a harm that should trump First Amendment protection even of political speakers; and a strong public interest in protecting trademarks exists." She rebuts this, however, by arguing that candidate speech deserves the most protection because it is imperative to the democratic process of self government. The article's ultimate conclusion is clear; trademark law trumps First Amendment protection if commercial use of a mark causes confusion or deception in the market, but First Amendment rights win when a mark is used for what should be highly valued and protected political speech.

As mentioned above, this article deals with trademark law opposed to copyright law. However, the argument against trademark law trumping First Amendment rights can transfer to the realm of copyright. It provides strong affirmative support for the position that copyright law should serve the public interest. This line of support focuses on the specific level of political campaigns, through which the public receives important information and can then partake in self government, a highly valued Constitutional right. Protecting speech, and limiting copyright, in such a realm as politics benefits the public interest.

Copyright (c) 1999 Publications Council of the College of William and Mary
William & Mary Bill of Rights Journal
December, 1999
8 Wm. & Mary Bill of Rts. J. 241

Celia Goldwag's article in Columbia Law Revew analyzes the clash between copyright law and the First Amendment as well as discussing any implications that this may or may not have on providing special privilages to copyright infringers. The first portion of the paper mentions that because copyright law intends to advance public welfare, four limits on copyright exist to curtail most conflictions with First Amendment rights. These include limited duration of protection, authorship requirements, distinction between ideas and expression, and the fair use doctrine. The distinction betwee ideas and expression satisfies most concerns with First Amendment rights because access to ideas, not expressions, is what satisfies the purpose of the First Amendment. When expression is necessary for the purpose of the work, however, the fair use doctrine can come to the defense of those charged with infringement. The article then goes on to discuss the narrow circumstance in which these four precautions do not stop all collisions between copyright and the First Amendment, namely when a work's idea is "wedded" to the protected expression, such as graphic images. Goldwag sites a case (Rosemont Enterprises, Inc. v. Random House, Inc.) in which the court ruled that copied articles were not infringement because that would deprive the public of dissemination of important facts of public interest. She then discusses how that decision was applied in Time, Inc. v. Bernard Geis Associates (discussed elsewhere). While "commentators have read Rosemont and Geis as establishing a public interest-based first amendment privilege to copyright infringement," this article takes an opposing view. It holds that such decisions were improperly made and such a privilege would not be effective. A general privilege and exemption from infringement of such cases where the First Amendment is at stake would undermine the intent of copyright law, as "every thing is imbued with public interest to some degree; any privilege, therefore, would be either totally dependent on the subjective values of the judiciary, or so broad in scope that the mere fact of infringement would be proof of public interest." The article continues to say that regardless of if a privilege was even possible to construe, the First Amendment's conflictions with copyright does not demand it. The area of contention is so narrow that all that is necessary to solve this problem is to balance society's interests- public interest in free expression, receiving information, protecting individuals' rights to create and express themselves- with the interest of copyright protection. The article holds that when a conflict does occur, no privilege is necessary as long as the infringer can still print the material without injunction while the copyright owner receives compensatory damages and nothing else.

The opinion held in this article applies to the question of how copyright effects the public interest because while one side may argue that in some cases, the First Amendment is violated and thus harms the public interest, this opposing view holds that copyright law in itself resolves such conflicts, as its intent is already to protect the public interest. No other measures, according to this view, are necessary. The article contributes support to the notion that copyright itrinsically serves the public interest, thus providing one answer to the question of this project.

In this article, Neil Turkewitz attacks figures such as Lawrence Lessig, who argue that copyright is a "special interest" and therefore hurts the public interest. Turkewitz claims that the belief that "the public's interest should triumph over the private" serves as "moral comfort" for those who steal intellectual property. In such an argument, Turkewitz interprets the opposing side's definition of the public interest as the ability to easily and cheaply appropriate copyrighted material. He corrects this misinterpretation and claims that the public actually has a primary interest in ensuring the production and distribution of copyrighted works so that such accessible works can even exist. According to this article, copyright protection is how we serve this public interest. Copyright protection furthers the public interest by ensuring the "promotion and development of the arts and sciences." Turkewitz does admit, however, that the system can be abused, although at present, it is the most effective system for "fostering creativity and democratizing cultural production and access thereto." Further, Turkewitz raises the issue of fair use as a protection against copyright laws infringing upon the First Amendment's right to free speech. He agrees that there must be limits of copyright to ensure protection of the First Amendment, but he argues that making unauthorized copies of copyrighted materials merely for personal use is not an extension of fair use and in no way involves free speech or the public interest. According to this article, implementing fair use as a defence against copyright infringment does not do anything to further protect the First Amendment or benefit the public interest.

This article directly relates to the issue of copyright and its impact on serving the public interest. Turkewitz's view directly combats Lessig's view in "Copyright and Politics Don't Mix," in that Turkewitz sees copyright as helping the public interest while Lessig sees it as a harm. The problem, however, is that they may be using dissimilar definitions of "public interest." Lessig argues that the public is entitled to read about, listen to, etc. information regarding governmental affairs and, thus, restricting such information because of copyright is detrimental to the public interest. On the other hand, Turkewitz argues that the public is entitled to access creative works, but that copyright protection ensures the development of such works and thus is necessary to ensure such access. While Turkewitz directly refutes Lessig's opinions, it seems as though he is refuting an opinion in a different realm of the public interest. The article, however, reveals another side to the debate of whether copyright serves the public interest.

Francione's article in the University of Pennsylvania Law Review discusses infringment and fair use of copyrightable or noncopyrightable factual information and uses "The Nation" case, which went through multiple appeals and reversed decisions, as evidence. The Nation case (Harper & Row, Publishers, Inc., Et Al. v. Nation Enterprises Et Al) involves The Nation's publication of Gerald Ford's then unpublished manuscripts, the rights of which were owned by Time. Originally, The Nation's publication of the material was ruled as copyright infringement, but in an appeal, the decision was reversed. The use was seen as fair because it disseminated factual information of a political figure to the public. The Supreme Court, however, then reversed that decision. Until this case, fair use was seen as a "cure all" when it came to factual information and copyright infringement claims, but the Supreme Court "[truncated] substantially the fair use defense." Francione examines the approaches taken to reach the different decisions in this case. He denounces the "totality approach," which acknowledges that ideas and facts cannot be copyrighted but, when integrated with copyrightable forms of expression, the sum of the work is transformed into protectable material. He believes that the Supreme Court's final decision limits the fair use doctrine, which is a component of the law necessary to protect the First Amendment in order to "ensure the continued broad dissemination of factual works."

The Nation case and its analysis relates to the topic of copyright and the public interest because it sheds light on different opinions of how much consideration should be given to a work that includes information of note to the public. The original decision rejected the defense that the publication was was protected by the First Amendment. Rather, since the heart of the work was taken for commercial use and thus hurt the copyright owner's market, this was not fair use. When looked at in totality with the rest of the work, copyright laws did apply, despite the presence of factual information. The court of appeals, however, focused on the distinction between facts/ideas and expression, only the latter of which is protected by copyright. The court saw First Amendment values as crucial because The Nation's article included information on "political events of major significance, involving a former President of the United States. The paraphrasings concern the very essence of news and history." The court also rejected the original "totality approach." Although the court acknowledged that the work was for profit, it "noted that profit was 'legally irrellevant' when public benefit was involved." Clearly, this decision implies that when works benefit the public interest, the need to distribute such information trumps the owners' copyright benefits. The court in this case, in addition to the article's author, believes that serving the public interest is of utmost importance and in order for copyright law to do so, the fair use doctrine must be interpreted widely. The Supreme Court, however, reversed this decision and focused on the unpublished nature of the work. Copyright owners cannot suppress facts, but the First Amendment also protects the right not to speak publically, and thus fair use of unpublished works should be strictly defined. The Court rejects that information of public interest should widen the scope of fair use because doing so would "destroy any expectation of copyright protection in the work of a public figure." The dissenting opinion notes that such a constricted interpretation of fair use hurts the goals to promote science and the arts and to protect the First Amendment. Examination and analysis of this case highlights two sides of the argument concerning copyright's role in serving the public interest.

This is the opinion of District Judge Wyatt in the case regarding Abraham Zapruder's film of President John F. Kennedy's assasination. Zapruder happend to catch the event on film and later sold it to "Life," a publishing of Time, Inc. Stills from the video were then printed in several issues of the magazine. The defendant, Thompson, wrote a book, Six Seconds in Dallas, in which he "sketches" some of these still pictures. Random House, Inc. then distributed this book the the public as "a serious, thoughtful and impressive analysis of the evidence." The plaintiffs complained that the sketches were stolen from Life by Thompson, and "that the conduct of defendants is an infringement of statutory copyrights, an unfair trade practice, and unfair competition." The defendants argued that the pictures were just records of what took place and that news cannot be subject to copyright infringement. Wyatt's opinion notes that the defendants were correct in this assertion, as their cited cases (National Tel. News Co. v Western Union and International News Services v. Associated Press) hold that news cannot be copyrighted. Wyatt does argue, however, that the facts of such news of Kennedy's assasination are not copyrighted, but the depiction of them is. Wyatt writes that "there is thus an infringement by defendants unless the use of the copyrighted material in the Book is a fair use outside the limits of copyright protection." This analysis is in favor of the defendants because "there is a public interest in having the fullest information available on the murder of President Kennedy." Thompson's copies in his book make his theory about this incident easier to understand. The book is bought to understand the Kennedy murder, not to see the stills from the Zapruder film, and thus there is little injury to Life or Time, Inc. from use of such images and the market is not injured. Therefore, the defendant and plaintiff are not in competition, and the copying by the defendants was fair and reasonable. There is not a ruling on copyright infringment because the copying is fair use, and Wyatt rules in favor of the defendants.

The opinion affirms that the public interest is of great value, and claims to copyright infringment will be denied if they stifle information that serves the public interest. As Wyatt wrote, "there is a public interest in having the fullest information available on the murder of President Kenney," which implies that as a state matter, the public deserves to know information about governmental affairs and copyright protection cannot stop that information from being divulged. The court in this case supported the implementation of a fair use defense to broaden protection of the public interest against copyright law. This decision falls in line with opinions like that of Lessig, who believes that protecting public interest (be it politics in his article or information about the president in this case) trumps protecting a copyright owner's economic incentives.

TIME INCORPORATED, Plaintiff, v. BERNARD GEIS ASSOCIATES, Bernard Geis, Josiah Thompson, and Random House, Inc., Defendants
No. 67 Civ. 4736
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
293 F. Supp. 130; 1968 U.S. Dist. LEXIS 12385; 159 U.S.P.Q. (BNA) 663

September 24, 1968

Chapter 1 of the Copyright Law deals with the subject matter and scope of copyright. Specifically, Section 102 addresses what constitutes copyrightable works. In general, copyright law protects "original works of authorship fixed in a tangible medium of expression." This includes, for example, literary works, sound recordings, dramatic works, and others. Section 105 addresses United States Government works and their ineligibility for copyright protection. Simply stated, any work produced by the government cannot be protected by copyright law. Finally, Section 107 discusses fair use as a limit on exclusive rights. The fair use doctrine states that copying "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." To determine whether such copying is actually fair use, four factors must be analyzed:

1. The purpose and character of the use (commercial or nonprofit education purposes?)

2. The nature of the copyrighted work.

3. The amount and substantiality of the portion used relative to the whole copyrighted work.

4. The effect of the use on the market for the copyrighted work.

Each of these sections is pertinent to the role of copyright in serving the public interest. First, the fact that copyright law protects original works of authorship suggests that, besides fair use exceptions, any work that meets the criteria for protection deserves such protection regardless of its impact on the public interest. However, Section 105 acknowledges that government works do not get copyright protection. The language does not specify the reason behind such a particularity, but it can be inferred that governmental works are of public interest, and the people deserve access to them. This section of United States Copyright Law suggests that copyright is intended to serve the public interest and although it should protect authors' originality to encourage progress and development, those concerns are trumped by concerns of the public interest when it comes to state and government affairs. Finally, the far use doctrine specifically says that news reporting is an exemption of fair use, provided that the instance is analyzed in terms of the four factors and still deemed to be exempted from copyright infringment. News reports tend to transform the original work for the purpose of delivering information to the public, a non commercial purpose, and they most often only use enough footage, language, etc. to properly convey such information. Being of a different purpose, reports do not tend to effect the market for the copyrighted work. Thus, the use of copyrighted works for the purpose of reporting news serves the public interest and is acknowledged by copyright law to be exempt. It can also be argued that campaigns and political speech fall under the category of news reporting since such speech relays information to the public for the purpose of democratically participating in government and state affairs. It seems that the public interest is intrinsically incorporated into copyright law, thus supporting the side of the argument that holds that copyright helps the public interest.

Trevor Potter, the General Counsel for the McCain/Palin campaign, wrote a letter to YouTube regarding its take down of campaign videos based on overreaching copyright claims that did not, infact, infringe upon copyright protection. Potter claims that YouTube's actions, thus, silenced political speech. The letter argues that inclusion of footage from news broadcasts in campaign ads or videos serves as commentary on the issues in the reports or on the reports themselves, and based on the four factors, the ads and videos constitute fair use--

1. The uses are non-commercial and transformative.

2. The uses are factual.

3. The uses are extremely brief and do not take more than what is neccessary for the commentary.

4. The uses have no effect on the market for the supposedly infronged upon work.

Potter thus argues that this fair use is not infringing copyright and should not have been taken down. Further, he argues that the take down of such videos deprives the public. Although according the the Digital Millenium Copyright Act (DMCA) and YouTube's policies the video can be re-released in 10-14 days, this is a lifetime in terms of political campaigns, and it hurts the public to deny them access to such videos. The letter suggests that YouTube give full fair use analyses to any video posted by an account related to a campaign. The benefits to the public will far outweigh the time costs. Potter closes the letter with reference to a past case in which the judge "recognized the importance of protecting copyright from interfering with political candidates' free and full exercise of their First Amendment right to vigorously debate the issues of the day."

Many aspects of this letter scream out that claims of copyright infringement harm free speech and thus harm the public interest. Uses of copyrighted materials that are fair use cannot be denied, and when they are, it stifles political speech, which is a guranteed right of the First Amendment. To do so "deprives the public of the ability to freely and easily view and discuss" important political issues. The quote from a judge in an earlier case makes the point rather well; "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people... The debate on public issues should be uninhibited, robust, and wide-open." He continues to argue that because the elected officials will make the decisions that undoubtedly effect the people of the nation, these people cannot be denied the right to engage in such political speech, and thus the right must be fervently protected. When claims of copyright infringment overstep their boundaries and "chill political speech," the public interest is undeniably harmed because their ability to fully participate in the political process is removed.