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Links: Protecting Fair Use with Eldred
Posted by Steven Wu on Monday, June 23 @ 09:56:29 EDT Copyright
Law.com has an article entitled A Hidden Hope for Fair Use which argues that the decision in Eldred v. Ashcroft suggests the Supreme Court's allegiance with fair use--a potentially good sign for future attacks against the DMCA.
Referring to previous Supreme Court decisions, [Justice Ginsburg] wrote that "copyright law contains built-in First Amendment accommodations." She noted that the fair use defense permits public use of copyrighted "expression itself in certain circumstances." And she wrote that "when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."
. . .
My hunch is that Justice Ginsburg brought up fair use -- and the links between free expression and copyright, and the importance of Congress' respecting "the traditional contours of copyright protection" -- as a way to show that the Supreme Court sees fair use as an integral aspect of free speech. And it's also my guess that the Court was signaling that it won't protect technological end runs around fair use.
(As the article candidly notes, though, some courts have already rejected the argument that the DMCA invalidly restricts fair use; it might very well be that the author is just grasping at straws here.)
 
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