Copyright, con law, and compelled speech

[Malla Pollack]

I must respectfully suggest the absence of a rational basis for the
super-protection of unpublished works under the copyright fair use
doctrine. IMHO the Supreme Court created this monstrosity to get the
outcome it wanted in a specific case.  Harper & Row v Nation  which
dealt with The Nation scooping first serial publication of President
Ford's description of why he pardoned Nixon (which the Court called the
"heart" of Ford's autobiography).  similarly, the Court seriously harmed
(IMHO) the conceptual theory of fair use by abandoning in this case the
long=established doctrine that one considered quantitatively how much of
a work was copied and insisting that a quantitatively minimal amount of
copying was too  much if it was the "heart of the work."  The Court was
looking for a way to allow public figures to continue to receive major
income from first person accounts in the face of a major First Amendment
argument.

Malla Pollack
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu