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Appeals Court Finds Copyright Statute Burdens Free Speech

Publication Date: 
September 06, 2007
Washington Internet Daily
Alexis Fabbri

Professor Lawrence Lessig and Executive Director of the Fair Use Project Anthony Falzone are quoted in this Washington Internet Daily article about the ruling on a copyright suit filed by Stanford's Center for Internet & Society:

Stanford University's Center for Internet & Society (CIS) filed the suit in 2001 on behalf of a University of Denver conductor and others, challenging the constitutionality of the Copyright Term Extension Act and URAA. Among their effects, the laws, restored copyright protection for certain works that had fallen into the public domain; this puts an unfair burden on those wanting to perform or otherwise make fair use of them, CIS argued. "While this decision does not invalidate the URAA, it does hold that the URAA" and future copyright laws "must pass either strict or intermediate First Amendment scrutiny on remand," noted Stanford University Fair Use Project Executive Director Anthony Falzone on the project blog. A three-judge panel said the plaintiffs, including "orchestra conductors, movie distributors and others" relying on works of art and music in the public domain "have shown sufficient free expression interests in works removed from the public domain to require First Amendment scrutiny," the panel wrote.

The decision was "a momentous victory," said Falzone.


What's most important is that the ruling also may tee up the question of copyright law and free speech for Supreme Court review, plaintiff and Stanford University Professor Larry Lessig told us. A few months ago, the Ninth Circuit rejected a similar First Amendment argument in Kahle v. Gonzales, in which two archives asked the U.S. District Court, San Francisco, to find unconstitutional on First Amendment grounds the Copyright Term Extension Act (as in Golan) and the Copyright Renewal Act, which afforded similar protections. In that case, CIS argued that the two laws together create an "effectively perpetual" term for works first published after January 1, 1964, and before January 1, 1978. That is a burden on free speech, CIS said. But in that case, the Ninth Circuit ruled that no further First Amendment scrutiny was required.