Sprigman, Christopher. "Fashion Copyright, 'Corruption,' and the Unheard Consumer." Public Knowledge Blog. http://www.publicknowledge.org/node/1404. February 20, 2008.

This blog provides some very useful insight into how the fashion industry works and the corruption plauging the industry. The fashion industry's success can be attributed to the cyclical nature of consumption. Basically, copying helps to set trends, trends lead to consumption, more copying destroys that same trend due to overexposure, and the industry moves on to new trends. Therefore, copying does not harm the process; it is the process that creates profits in fashion. Why then would anyone want to destroy the process that generates money? Sprigman answers this question by accusing the Council for Fashion Designers of America of corruption and selfishness. The CFDA is the group that is promoting copyright laws for fashion design. However, the CFDA only represents a small fraction of the industry, the elite designers. The needs of the thousands of non-elite designers, manufacturers, retailers, distributors, and consumers are completely overlooked by the CFDA. These elite designers, who sell clothes for ridiculous prices, are the only ones who can afford to compete and prosper in a revised industry where every design is subject to infrigement suits. This is because these elite groups are the only ones who can afford lawyers. Just to increase profit a little for the small group of elite designers, the CFDA is going to raise prices and reduce consumer choices in an industry that has been incredibly successful for a very long time. These laws hurt consumers. However, consumer needs are ignored because of corrupt politics. These elite corporations can afford to pay Congressmen to sponsor the passing of bills they support. Therefore, intellectual property laws are badly warped due to elite desires and political corruption.

Although blogs are not necessarily the most reliable sources, the author of this blog is Chris Sprigman, the author of the Piracy Paradox. This blog is so interesting because it provides a completely different take on the fashion copyright war: a political angle. Rather than having an equal amount of people of either side of the debate, Sprigman argues that only a very few elite designers actually support these laws. The other supporters, such as those in Congress, are just a result of corruption. The argument here is the decision made regarding this issue should benefit the majority or the "public good." Since the CFDA is a small fraction of the fashion industry, passing these laws would harm the majority simply because this elite group is able to buy support. Therefore, this article is structured around attacking the CFDA and Congress and their reasons for supporting design protection. This will be very beneficial to my paper and argument since I can use these claims to counterargue declarations that fashion copyright will benefit the industry, consumers, and the fashion cycle.

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

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.

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.