use of copyright to suppress a political speech

Volokh, Eugene VOLOKH at law.ucla.edu
Tue Nov 27 18:47:00 PST 2007


    It does that matter that the entire speech was published on the
judge's own web site -- that strengthens the copier's fair use claim.
That only 60 seconds or so were used is better for the copier than if
the whole speech was used, but not as good as if only 5 seconds were
used.  As to your last question, plus the bottom line question in this
case, I think the users have a strong fair use claim, because their
purpose is news reporting plus criticism of the original, and because
there's no real financial loss to the copyright owner (since he's not
selling the ad).  (This assumes that the speech in this case had indeed
been published on the judge's Web site.)
 
    Eugene
 
 
________________________________

From: Curtis, Michael K. [mailto:curtismk at wfu.edu] 
Sent: Tuesday, November 27, 2007 6:15 PM
To: Volokh, Eugene
Subject: RE: use of copyright to suppress a political speech



	Thanks Eugene.  I will look at the Harper and Row case.  Does it
matter that the entire speech was published (presumably as a sort of
political ad) by the Judge on the web on his web site?  Or that only 60
seconds or so were used?  Can one run a political ad on TV and copyright
it and then prevent others from using it in news or commentary?

	 

	Michael

	 

	
________________________________


	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
	Sent: Tuesday, November 27, 2007 7:56 PM
	To: CONLAWPROF at lists.ucla.edu
	Subject: RE: use of copyright to suppress a political speech

	 

	Folks:  Let's not forget that there is a good deal of copyright
-- and copyright/First Amendment -- caselaw out there, some of which
reaches results that might be surprising.  Most to the point, Harper &
Row v. Nation Enterps., the Court's leading copyright/First Amendment
case specifically stresses the importance of the author's interest in
preventing publication of his work.  

	 

	I'm not wild about this argument, and I've criticized parts of
it, see http://www.law.ucla.edu/volokh/speechip.pdf (PDF pp. 31-36);
moreover, one could distinguish Harper & Row from this case on the
grounds that the speech in this case was made publicly even if not
strictly speaking "published," or on the grounds that there's no real
prospect of profit from eventual publication of the speech.  But the
premise that the author generally has a copyright-protected interest in
preventing publication of his work, like it or not, has a good deal of
legal authority behind it.

	 

	Eugene

		 

		
________________________________


		From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of guayiya
		Sent: Tuesday, November 27, 2007 4:41 PM
		To: jfn
		Cc: CONLAWPROF at lists.ucla.edu
		Subject: Re: use of copyright to suppress a political
speech

		
		
		jfn wrote:
		
		

		At 8:45 AM -0600 11/27/07, Malla Pollack wrote:

			Speaking as a copyright expert, I predict that
the judge's (or his proxy's) law suit would fail. 

		 

		Prof. Pollack gives short shrift to the author's
interest in preventing publication of his work

		  

		I am not a copyright caselaw expert, but, as an author,
I find this statement genuinely bizarre.  In what context has the law
recognized such an interest?  
		The rationale for the copyright clause is not authorial
profit (a means, at most) but social progress.
		Personally, I would rather be read than not read,
regardless of who gets the pennies.  Of course, I am not a best-seller
celebrity.  But neither is this judge.
		Anyway, the idea of an interest in preventing
dissemination of one's campaign messages  makes no sense at all.  If one
makes a stupid speech or ad, one is entitled to clarify or apologize,
but not to suppress it. 
		If the motivation for judicial campaign speeches is
financial profit, then, IMHO, the campaigners are palpably unfit to
serve; they and their knowing supporters are simply corrupt.  
		Daniel Hoffman

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