Protecting Factual Compilations—First Amendment Issues

Eric Goldman

Marquette University Law School

eric.goldman@marquette.edu

http://eric_goldman.tripod.com

Overview of the Problem

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

w The tension between IP and 1^st Amendment

n Copyright, TM & trade secret laws restrict speech

n Copyright and 1^st 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?

Copyright

w Arguments that 1^st Amend. doesn’t restrict

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

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

w Arguments that it does

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

n 3 cases in past 12 months have applied content-neutral 1^st 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 1^st 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 1^st Amendment when the contents were a matter of public concern

w But 1^st 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 1^st Amend. restricts

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

w Trade secret laws aren’t under Constitutional Umbrella

w Arguments that it doesn’t

n 1^st Amend. only covers forms of social interaction that realize 1^st 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 1^st Amend. applies but the laws survive unless they restrict matters of public concern

Trespass to Chattels/CFAA

w Arguments that the 1^st 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

Conclusions

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

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

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

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

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