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

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

reinhold@world.std.com has written:

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.  


Support for the argument that the facts in a database cannot be copyrighted and therefore the database as a whole cannot be copyrighted. The other question is the so called "trade secret" aspects of the DVDCSS. 


>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 autho rís 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.

She's skirting the whole issue of fair use; IN particular the use of quotations in scholarly persuits, The use of copyright material in criticism or public debate. It's not clear how the use of copyright images for political discourse.


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

Or the garage door opener. But in either case, the use of copyright argument is entirely specious since both are using FACTS.

>
>=================
>
>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]

Too bad it's too late to appeal the 2600 case. Presumably someone can read the copyright code, find the FACTS of how DVDCSS works and then use those facts.

>=============
>
>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]
>

Which also was one of the questions that SCOTUS really did not address well in their reply. Or if they did, then I missed that. Yes they state that "they spoke too broadly" but they really didn't say "we can but we have chosen to not do so"

>==========
>
>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]
>

This is a very difficult passage to interpret, if not badly written. A façade is a showy front that covers something unpleasant. Is the showy front the petitioners interpretation? Then what is the unpleasantness? The "very bad policy" that has been forcefully urged. It's also interesting that they also do not state that the "inventive constitutional interpretation" is wrong.


>>