Laws with secular exceptions -- copyright

[Marty Lederman]

There are, as Eugene suggests, plenty of statutes (and common law doctrines)
that are chock-full of exceptions, and that do leave one wondering whether
there's any such thing as general applicability, or whether Smith and Lukumi
had something quite different in mind than "a statute with nonreligious
exemptions."  But I'm not sure copyright is the best example for Eugene's
case.

As Eugene would have it, the copyright law provides copyright holders with a
kind of "property" right, and the various so-called "exceptions" -- fair use,
in particular -- permit others to "harm" the copyright holders so as to
promote *other* social interests.  For instance, Eugene writes:

>  The principle behind fair use, then, isn't just that some
>  noncommercial uses don't materially hurt the author.  Rather, it's that
>  some commercial uses that *do* "hurt" the author (in the standard
>  copyright sense of "hurt") are to be licensed because they are socially
>  favored: news reporting, commentary, criticism, parody, and to some
>  extent educational copying.

But in fact, the fair use doctrine is supposed to reflect -- and realize --
the very same "socially favored" goals as the copyright itself.  Providing a
copyright to the author, and carving out fair uses as noninfringing, are
*both* aimed at a broader social goal -- not enriching authors, but promoting
science and the arts, just like Art. I says.  Don't take my word for it; it's
been a Supreme Court mantra of late:

-- The fair use doctrine, like the copyright protections that it qualifies, is
necessary in order "to fulfill copyright's very purpose, ‘[t]o promote the
Progress of Science and useful Arts.'"  Campbell, 510 U.S. at 575.

-- "The fair use doctrine thus ‘permits courts to avoid rigid application of
the copyright statute when, on occasion, it would stifle the very creativity
which that law is designed to foster.'"  Id. at 577 (quoting Stewart v. Abend,
495 U.S. 207, 236 (1990)).

-- "Copyright is intended to increase and not to impede the harvest of
knowledge."  Harper & Row, 471 U.S. at 545).

--  "The limited scope of the copyright holder's statutory monopoly . . .
reflects a balance of competing claims upon the public interest:  Creative
work is to be encouraged and rewarded, but private motivation must ultimately
serve the cause of promoting broad public availability of literature, music,
and the other arts.  The immediate effect of our copyright law is to secure a
fair return for an 'author's' creative labor.  But the ultimate aim is, by
this incentive, to stimulate artistic creativity for the general public good."
Fogerty v. Fantasy, Inc., 510 U.S. 517, 526-27 (1994) (quoting Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

Fair use, in other words, is analogous to the "undercover operations"
exception in the New Jersey beard case:  not only doesn't it undermine the
goals of the "basic" prohibition; it realizes such goals.  That's why it makes
sense that fair use is *not* an "exception"; it's a category of uses that are
noninfringing in the first place (kind of like the difference in the Federal
Rules of Evidence between evidence identified as "not hearsay" and evidence
that falls within a hearsay exception).

Much the same could be said for other copyright pseudo-"exceptions" (i.e.,
noninfringements), as well, such as sec. 108 (certain library copying) and
sec. 109 (first use).

So maybe Eugene should return to trespass law as his Exhibit A.  Except that
every time Eugene starts listing the exceptions to trespass law, my natural
inclination is to think, "If *those* trespasses are permissible, then why
*shouldn't* the FE Clause require trespasses that are religiously motivated?"

Marty Lederman
(in my personal capacity)