RE: [dvd-discuss] various reactions to supreme court travesty

["Arnold G. Reinhold" <reinhold(at)world.std.com>]

At 8:49 AM -0800 1/28/03, Richard Hartman wrote:
>Ginsberg relied heavily on the expression/idea dichotomy.
>

Here are some quotes from Justice Ginsburg's majority Eldred opinion 
that might prove helpful some day:


Further  distinguishing  the  two  kinds  of  intellectual
property,  copyright  gives  the  holder  no  monopoly  on  any
knowledge.  A reader of an author's writing may make full
use of any fact or idea she acquires from her reading.  See
§102(b).    The  grant  of  a  patent,  on  the  other  hand,  does
prevent full use by others of the inventorís knowledge.  See
Brief for Respondent 22; Alfred Bell & Co. v. Catalda Fine
Arts,  191  F. 2d  99,  103,  n. 16  (CA2  1951)  (The  monopoly
granted  by  a  copyright  is  not  a  monopoly  of  knowledge.
The grant of a patent does prevent full use being made of
knowledge, but the reader of a book is not by the copyright
laws prevented from making full use of any information he
may acquire from his reading. Further  distinguishing  the  two 
kinds  of  intellectual
property,  copyright  gives  the  holder  no  monopoly  on  any
knowledge.  A reader of an authorís writing may make full
use of any fact or idea she acquires from her reading.  See
§102(b).    The  grant  of  a  patent,  on  the  other  hand,  does
prevent full use by others of the inventorís knowledge.  See
Brief for Respondent 22; Alfred Bell & Co. v. Catalda Fine
Arts,  191  F. 2d  99,  103,  n. 16  (CA2  1951)  (The  monopoly
granted  by  a  copyright  "is  not  a  monopoly  of  knowledge.
The grant of a patent does prevent full use being made of
knowledge, but the reader of a book is not by the copyright
laws prevented from making full use of any information he
may acquire from his reading." (quoting W. Copinger, Law


============

As  we  said  in Harper  &  Row,
this "idea/expression  dichotomy  strike[s]  a  definitional
balance between the First Amendment and the Copyright
Act  by  permitting  free  communication  of  facts  while  still
protecting  an  author's  expression."    471  U. S.,  at  556
(internal  quotation  marks  omitted).    Due  to  this  distinction,
every  idea,  theory,  and  fact  in  a  copyrighted  work
becomes  instantly  available  for  public  exploitation  at  the
moment of publication.  See Feist, 499 U. S., at 349ñ350.

[The above two quotes might call into question  Lexmark's attempt to 
use copyright to prevent reverse engineering of printer 
cartridges--agr]

=================

The CTEA, in contrast, does not oblige anyone to reproduce
another's speech against the carrier's will.  Instead, it
protects  authors'  original  expression  from  unrestricted
exploitation.    Protection  of  that  order  does  not  raise  the
free  speech  concerns  present  when  the  government  compels
or  burdens  the  communication  of  particular  facts  or
ideas.

[The DMCA, of course, does burden  "the  communication  of  particular
facts or ideas. -- agr]
=============

We  recognize  that  the  D. C.  Circuit  spoke  too
broadly when it declared copyrights 'categorically immune
from challenges under the First Amendment.'

[This was one of the original questions the SC agreed to consider--agr]

==========

Beneath the facade of their inventive constitutional interpretation,
petitioners  forcefully  urge  that  Congress  pursued
very bad policy in prescribing the CTEA's long terms.
The wisdom of Congress' action, however, is not within our
province  to  second  guess.

[Elsewhere in the opinion Ginsburg uses "forceful" to suggest he 
finds an argument more compelling. --agr]