CHAPTER 12 THE FIRST AMENDMENT PART 1: INTRODUCTION People who are penalized for committing copyright infringement may think the Copyright Act is not letting them exercise their First Amendment right of free speech. After all, the P a g e | 833
First Amendment does say “Congress shall make no law…abridging the freedom of speech, or of the press…” You may be asking yourself questions like: Doesn’t the Copyright Act fly directly in the face of that command from the First Amendment? Isn’t the Copyright Act a law made by Congress that gets in the way of freedom of speech by punishing unauthorized creative expression?
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The U.S. Constitution
What kind of speech does it protect?
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The constitutional right to free speech is very broad, but it is not, however, an absolute right to say whatever you want. Over time, the United States Supreme Court has recognized certain limitations on the constitutional right to free speech. Examples of such limitations include: fighting words, obscenity, slander, defamation, and threats. Copyrights fall under another class of acceptable limitations on free speech that allow the government to make laws protecting intellectual property rights. The Supreme Court recently confirmed that copyright falls into this category of acceptable speech limitations in 1985 in a case called Harper & Row v. Nation Enterprises. P a g e | 836
Constitutional Free Speech Protection
What types of speech qualify?
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Obama’s Order of New Agency) Seattle PI (SOPA Legislation)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 12 THE FIRST AMENDMENT PART 2: COPYRIGHT INFRINGEMENT & OTHER WRONGS NOT PROTECTED BY FIRST AMENDMENT Courts have ruled that copyright law does not violate the First Amendment because copyright has built-in First Amendment accommodations in the form of the idea/expression dichotomy and also the fair use P a g e | 839
defense that are discussed in other parts of this book. Without these protections, courts could rule that the copyright law violates the First Amendment. Tort law is another area of law that restricts speech because it prohibits defamation, invasion of privacy, and intentional infliction of emotional distress.
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True Threats
True threats are not protected by the First Amendment!
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Copyright Infringement and the Free Press) Seattle PI (Seattle Copyright Lawyer)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 12 THE FIRST AMENDMENT PART 3: THREATS, BULLYING AND INTIMIDATION ARE NOT PROTECTED BY THE FIRST AMENDMENT Threats are another category of speech that are not covered by the First Amendment. Under the “true threats” doctrine, threatening speech loses its First Amendment protection based on the victim’s fear from that speech. P a g e | 843
True threats are statements where the speaker intends to communicate a serious expression of an intent to commit an act of violence on a specific person or group. Intimidation is a true threat not covered by the First Amendment if the speaker directs the threat at a person or group of people with the intent of placing the victim in fear of bodily harm or death. Our courts prohibit true threats because doing so protects individuals from the fear of violence because fear of violence disrupts the lives of individuals in a dramatic way. Prohibiting true threats also protects people from the possibility that the threatened violence will occur. P a g e | 844
TIP: It’s important to remember that it’s not necessary for the person making the threat to be near the person they are threatening. True threats can occur over the internet and other digital media.
The speaker’s intent does not matter for determining a true threat. It does not matter if the speaker meant to cause the listener fear, what matters is whether the listener had a reasonable reason to be scared based on the speaker’s actions. Not only is Internet harassment not covered by the First Amendment, it can also be a violation of federal law.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Obama’s Order of New Agency) Seattle PI (SOPA Legislation)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 12 THE FIRST AMENDMENT PART 4: ONLINE BULLYING IS AGAINST FEDERAL LAW The Communications Decency Act (CDA), for example, prohibits the anonymous P a g e | 847
utilization of a telecommunication device with the intent to annoy. (Anonymous indicates using screen names)
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Online Bullying
Online bullying is not protected by the First Amendment!
Some people may be surprised that online bullying can be a violation of federal law, but it makes sense when you consider that online P a g e | 849
bullying is often just as harmful, or even more harmful, than bullying in “real life.� When a bullying statement can be read online it is worse than spray painting the same message on the target’s front door because bullying messages online can be viewed worldwide. Courts have been right to declare that threats and bullying do not qualify for First Amendment protection because those types of behavior are detrimental to our society. It is important that our rules and norms reflect this important value.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Obama’s Order of New Agency) Seattle PI (SOPA Legislation)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 12 THE FIRST AMENDMENT PART 5: MYTHS OF COPYRIGHT INFRINGEMENT AND THE FIRST AMENDMENT P a g e | 852
Myth Busters No. 44
“It’s unconstitutional for courts to tell me I can’t publish my book that infringes copyright! I have free speech!”
Wrong. The United States Supreme Court has affirmed that copyright law is an acceptable limitation on free speech multiple times.
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Myth Busters No. 45
“There is no way a court would call my threat a ‘true threat,’ I wasn’t even in the same room as the person I threatened!”
Wrong. True threats can occur over the internet and other digital media.
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Myth Busters No. 46
“My words can’t qualify as a ‘true threat,’ I didn’t even mean to threaten the person I was speaking to.”
Wrong. The speaker’s intent doesn’t matter for determining a true threat. What matters is if the listener had a reasonable reason to be scared.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Obama’s Order of New Agency) Seattle PI (SOPA Legislation)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 12 THE FIRST AMENDMENT PART 6: JUST THE ESSENTIALS OF COPYRIGHT INFRINGEMENT AND THE FIRST AMENDMENT P a g e | 857
Just the Essentials
First Amendment: “Bite Sized” The First Amendment of the U.S. Constitution protects “free speech” but is not a license for threatening people or defamation.
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Just the Essentials
First Amendment : “Bite Sized” The First Amendment of the U.S. Constitution protects “free speech”. That is not a defense to copyright infringement- also a law authorized by the U.S. Constitution.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Copyright Infringement and the Free Press) Seattle PI (Seattle Copyright Lawyer)
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http://thetradesecretsofintellectualproperty.com/
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