Protecting Factual Compilations—First Amendment Issues

Eric Goldman

Marquette University Law School


Overview of the Problem

w   What the heck does the 1st Amend. have to do with IP law?

w   The tension between IP and 1st Amendment

n    Copyright, TM & trade secret laws restrict speech

n    Copyright and 1st Amend. are both in Constitution

w   All Internet participation could be speech

n    Online speech and actions manifest via “packets”

n    Limits on “disseminating packets for X purpose”

w   Are we regulating theft or speech?  Property or public domain knowledge?



w   Arguments that 1st Amend. doesn’t restrict

n    Idea/expression dichotomy and fair use are only 1st Amend. incursions to Copyright clause (H&R)

n    Copyrights are categorically immune from 1st Amend. challenges (Eldred DC Cir.)

w   Arguments that it does

n    Copyright laws survive 1st Amend. review only if they produce more speech (Lessig)

n    3 cases in past 12 months have applied content-neutral 1st Amend. scrutiny to copyright laws

w  Anti-circumvention restrictions (Corley and Elcomsoft)

w  Satellite Home Viewer Improv. Act (CBS v. Echostar)

w  All 3 provisions survived intermediate scrutiny

w   Eric’s take

n    Expect more 1st Amendment challenges as copyright law extends beyond “writings”

n    Copyright clause creates “Constitutional Umbrella” over copyright laws that protect authors’ writings

n    Speech restriction concerns should be handled through Copyright clause interpretation


Bartnicki v. Vopper (121 S. Ct. 1753 (2001))

w   Wiretapping law restricts redistributing contents of an electronic communication knowing that the content was obtained by an illegal interception

w   Law violates 1st Amendment when the contents were a matter of public concern

w   But 1st Amendment doesn’t protect criminal acquisition of information, even if a matter of public concern

w   Bartnicki’s effect on copyright, trade secret, misappropriation, trespass and contract laws?


Info Misappropriation (hot news; database laws)

w   Arguments that the 1st Amend. restricts

n    Unless enumerated in Chaplinksy, all speech restrictions trigger 1st Amend. analysis (Bunner)

w  Trade secret laws aren’t under Constitutional Umbrella

w   Arguments that it doesn’t

n    1st Amend. only covers forms of social interaction that realize 1st Amend. values (R. Post)

w  Misappropriation laws will be curtailed only when info is matter of public concern

w   Eric’s take

n    If viewed as anti-theft or unfair competition laws, the 1st Amend. applies but the laws survive unless they restrict matters of public concern


Trespass to Chattels/CFAA

w   Arguments that the 1st Amend. restricts

n    Internet server is public forum (Cyber Promo arg.)

n    State enforcement of trespass laws is a content-neutral regulation of speech (Hamidi amici)

w   Argument that it doesn’t

n    No state action (Hamidi, Cyber Promo)

w  Web servers aren’t company towns or public utilities

w   Eric’s take

n    As applied to factual compilations, courts will likely treat trespass laws as anti-theft personal property protections rather than as speech restrictions

n    Bartnicki may limit protection of extracted data



w   Trespass and core copyright laws probably won’t be subject to 1st Amend. analysis

w   Misappropriation and non-core copyright laws should be subject to 1st Amend. scrutiny

n    But content-neutral laws will survive unless matter of public concern

w   With increasingly expansive IP legislation, expect more 1st Amend. challenges from SIGs unable to buy statutory exceptions (Lemley)

w   The 1st Amend.’s small role doesn’t mean that more protection of factual compilations is good policy!