Previous Politech message: "Responses to Public Citizen on RIAA v. Verizon case" http://www.politechbot.com/p-04756.html --- Date: Tue, 20 May 2003 09:23:51 -0400 From: "Paul Levy" <PLEVYat_private> To: <declanat_private> Subject: Re: FC: Rejoinder from Paul Alan Levy on RIAA v. Verizon case Cindy Cohn's email makes two main points: first, many many organizations joined her brief, and second, it would be the better rule if a copyright owner had to bring a lawsuit before it could get a subpoena issued. We decline to be impressed by the former argument (which Dave McCurdy repeats, as does Seth David Shoen though he spares us the full listing of endorsers -- and what a glorious listing of friends they have!). I rather doubt that many courts are impressed by the inclusion of long lists of amici on a brief. It is easy to sign people up for a brief that takes a politically satisfying stance, but so what? Howard Roark's correctness or lack of correctness was not affected by the number of famous or important people who disagreed with him. The problem with the second argument is that the Court of Appeals is not free to substitute its judgment for Congress' about whether Cindy's is the better rule. The question is whether the statute that Congress passed violates the Constitution. We filed our brief because although some of the constitutional arguments that Verizon made seemed superficially attractive when I was first asked to argue them in an amicus brief, but in the end we thought it was unlikely that the arguments would prevail (if I was wrong, and they do prevail, fine). Having reached the conclusion, it made sense to offer the court a way in which it could accommodate the First Amendment and Due Process concerns that we share with EFF, pertaining to subpoenas issued and enforced without notice to the Internet user, without invalidating on its face a statute that was passed to address what Congress regarded as a real problem. Karl Auerbach makes a different point - that under our theory, the publication of the Pentagon Papers could have been blocked under copyright law, and copyright law should allow awards of damages but not injunctions against publication. Karl is wrong in his example, because the federal government cannot copyright its publications (see section 105 of the Copyright Code), and he is also wrong about the remedies available for copyright violations. (see section 502, expressly authorizing injunctions). At the risk of going off on a tangent, the real threat of government suppression of documents like the Pentagon Papers comes not from the law of copyright but from the law of contract. A few years ago I had occasion to represent a retired CIA official who was barred from publishing an analysis of the Bay of Pigs fiasco that he had prepared. We argued that this was really the government trying to pursue a copyright theory, which was forbidden, but the DC Circuit upheld the ruling against our client on the ground that the government COULD enforce his secrecy agreement through required pre-publication review. We made just the sort of arguments that Karl suggests, in contending that the secrecy agreements could allow the government to evade the rule against federal copyright, and it got us exactly nowhere. Karl also takes the Public Citizen press release to task for "blandly accepting" an assumption that copyright law extinguishes First Amendment rights. We actually did not accept the proposition that a mere allegation of copyright infringement is enough to make it unnecessary to consider the First Amendment -- disputing that proposition is the main point of our brief -- but the problem with Karl's note is a deeper one. The Supreme Court keeps telling us that fair use analysis and other elements under the copyright laws incorporate First Amendment rights, and hence there is no room for First Amendment arguments in addition. Now, there have been some tantalizing tidbits in the occasional opinion that keep giving the free speech bar hope that some First Amendment claims might be tenable even when a copyright defense is not, or perhaps that copyright law might have to be construed in light of the First Amendment -- there was a passage in the recent 11th Circuit decision addressing the copyright-based preliminary injunction against publication of "The Wind Done Gone", and a nice sentence in the Eldred opinion. (There is a nice discussion of some of these tantalizing prospects published today by in Margie Schweitzer's http://www.jurisnotes.com/fourquestions.htm) article by Peter Yu). But these are very tough arguments. It would, in our judgment, a mistake to predicate the approach to DMCA section 512 on the assumption that such arguments are going to prevail. Maybe there is a situation in which the First Amendment would bar an injunction against a copyright infringement, but if so that argument could be raised in defense of the subpoena. On the other hand, I rather doubt that the various people who might be identified for substantial violations of the copyright laws through file-sharing are worried about the possibility of being enjoined as much as they are worried about being socked for statutory damages. I have said all I care to say in response to Brad Templeton's interesting comments, thank you for including them in your message. Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. ------------------------------------------------------------------------- To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
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