E. Varied Intellectual Property Rulings Point Up First Amendment Nexus

    The intersection of intellectual property law and the First Amendment is an area receiving increasing attention by policymakers and courts.  This attention has revived a debate over whether First Amendment doctrines operate in some free-standing sense to modify intellectual property rules, or whether it is best to think of existing intellectual property rules as containing “built-in” safety valves for freedom of expression that already provide the doctrinal accommodation between free speech and protection of intellectual property. 

     In areas such as copyright, for example, the received wisdom has tended toward the view that a number of fundamental principles of copyright law essentially do the service of protecting free expression, obviating the need for any separate overlay of First Amendment doctrine upon them.  These include such doctrines as the “idea/expression” dichotomy, which forbids copyright protection in underlying “ideas,” but permits protection for the embodiment of those ideas in actual “expression”; or the doctrine that mere “facts” are not copyrightable (and hence, “news events” as such cannot be “owned” by the copyright holder -- only the narrative expression of those events in a particular news story is protectable); or the “fair use” doctrine, a highly developed body of law that permits limited copying for certain purposes, such as critique, review, parody, and education.

     This threshold philosophical issue was addressed in 2001 by the U.S. Court of Appeals for the District of Columbia Circuit in Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), in which the court upheld the Copyright Term Extension Act of 1998 (CTEA), Pub. L. No. 105‑298, 112 Stat. 2827 (1998).  The case presented a constitutional challenge under the First Amendment and the Copyright Clause to the power of Congress to extend for a period of years the duration of copyrights, both those already extant and those yet to come.  The court rejected both constitutional claims, all but cutting off at the knees any First Amendment challenge to the copyright extension:

The decisions of the Supreme Court ... and of this court ... stand as insuperable bars to plaintiffs’ First Amendment theory.  In Harper & Row the Court ... explained how the regime of copyright itself respects and adequately safeguards the freedom of speech protected by the First Amendment....  In keeping with this approach, we held ... that copyrights are categorically immune from challenges under the First Amendment....  We think the plaintiffs’ purported distinction is wholly illusory.  The relevant question under the First Amendment - regardless whether it arises as a defense in a suit for copyright infringement or in an anticipatory challenge to a statute or regulation - is whether the party has a First Amendment interest in a copyrighted work.  The works to which the CTEA applies, and in which plaintiffs claim a First Amendment interest, are by definition under copyright; that puts the works on the latter half of the “idea/expression dichotomy” and makes them subject to fair use.  This obviates further inquiry under the First Amendment....  Suffice it to say we reject their First Amendment objection to the CTEA because the plaintiffs lack any cognizable First Amendment right to exploit the copyrighted works of others.

SunTrust Bank v. Houghton Mifflin Co.

     The application of this mode of analysis does not necessarily mean defeat for expressive interests and victory for copyright holders.  In a particularly interesting case involving the copyright holders to the classic Margaret Mitchell novel Gone With the Wind, the U.S. Court of Appeals for the Eleventh Circuit recently applied the fair use doctrine to overturn a preliminary injunction barring publication of a contemporary take-off on Ms. Mitchell’s novel, written by Alice Randall, entitled The Wind Done Gone.  In SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001), the court of appeals appeared to concede that the Copyright Act does incorporate numerous doctrines accommodating free expression, particularly the “fair use” defense. 

     Applying classic fair use analysis, the court held that it was likely that The Wind Done Gone had made fair use of the protected elements of Gone With the Wind, in the service of Alice Randall’s purpose of writing a novel that critiqued and parodied Ms. Mitchell’s presentation of slavery and the Civil War-era American South.  While the First Amendment thus played no explicit doctrinal role in the decision, certainly the First Amendment values of promoting new expression in the marketplace and robust critique of existing expression in that market played a strong “informing role” in the Court’s application of traditional copyright doctrines.

     The U.S. Court of Appeals for the Eleventh Circuit issued an opinion that considered the relationship between copyright and the First Amendment in another medium.  The Satellite Home Viewers Act (SHVA), Pub. L. No. 101-667, Title II, Sec. 202(2), 102 Stat. 3949 (1988), authorized satellite carriers to provide distant network programming to households unserved by local television network affiliates. 

     In CBS Broadcasting, Inc. v. EchoStar Communications Corp., 265 F.3d 1193 (11th Cir. 2001), the court of appeals considered a copyright infringement claim by television networks against satellite carriers that were transmitting network material to individuals already served by local network affiliates.  The court rejected the satellite carriers’ argument that the SHVA restrictions violated their First Amendment right to provide distant network programming to their subscribers, and that the SHVA was a content-based restriction that improperly distinguished between local and non-local programming. 

     The court noted that the SHVA creates a compulsory license that permits satellite carriers to broadcast copyrighted network programming that they would otherwise be prohibited from broadcasting, permitting more speech than they otherwise would be constitutionally entitled to.  By limiting this compulsory license to the provision of service to individuals who are not locally served, Congress balanced the copyright interests of the networks and the public interest in access to network programming.  

-- Rodney A. Smolla