DISQUS

So you're right that the most important early application of "transformative use" was in Campbell, but you might find it interesting to read the law review article that started it all: Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). Leval, as you may know, is a judge on the Second Circuit Court of Appeals.

Its roots are in fair use, but I think I'm in general agreement with Solveig that transformativity should be an independent equitable exception to copyright, separate from fair use. It has the tendency to swallow the entire analysis when it's brought in to fair use. That said, courts have still been calling transformativity "fair use" for years, so separating the two could be difficult.

I think that's a reasonable way to read the "traditional contours" language from Eldred, yes.

That's not to defend the "traditional contours" language. I think copyright laws should be reviewed like any other law that restricts speech, whether they're "traditional" or novel or something else. But the Eldred decision left showing a change to "traditional contours" as the only way a copyright law could get ordinary First Amendment review, so the plaintiffs in Golan had to meet that standard in order to proceed.

The plaintiffs in Golan want to do expressive things that would infringe restored copyrights, like performing music or screening films with commentary. These uses go beyond fair use, but are nonetheless speech and are nonetheless protected by the First Amendment.

The point I failed to make is that First Amendment protections go far beyond prohibiting viewpoint-based regulations (such as "no copyrights on libertarian speech"). They also regulate content-based regulations (such as "no political advertising" or "no nudity on TV") and content-neutral restrictions (such as "no loud noises after 10 PM"). Though they deal with those categories of speech differently (requiring least restrictive means and narrow tailoring, respectively), the First Amendment still controls what Congress may and may not do to regulate speech.

But regardless of the standard, the government will have to show that the purpose of the law is important enough to justify its impact on free speech. Whatever the Supreme Court says about the right to free speech bearing less heavily when one is making "other people's speeches," leading a student orchestra in a concert commemorating a national tragedy (as one of the Golan plaintiffs wished to), for example, is indisputably an expressive act protected by the First Amendment. Any law that burdens it must justify that burden.

If you're interested in the facts behind the Plaintiffs' First Amendment claims, you may want to take a look at pages 15-19 of this brief.

I think I needed to explain things a bit better, and I may go back and update my post.

The Golan court found that the URAA's grant of rights fell within Congress's power under the Progress Clause. That happens on page 16. But that's not the end of the story: even if a regulation falls within Congress's enumerated powers, it must still, as the Golan court says, "comport with other express limitations of the Constitution." One of those limitations is the First Amendment; others include, say, the Second and Fourteenth amendments. So, for example, even though Congress has the power under the Commerce Clause to regulate interstate trucking companies, it couldn't pass a law saying that only white people could drive trucks across state lines. That regulation would be within the Commerce power, but would be prohibited by the Fourteenth Amendment. And even though a ban on all interstate firearms sales would fall within the Commerce power, it probably runs afoul of the Second Amendment.

Similarly, even if the URAA is within Congress's power under the Progress Clause, it may still be unconstitutional if it violates an independent limitation, such as the First Amendment. So, for example, a copyright law that did nothing but eliminated copyrights on all books advocating libertarianism might be within the Progress Clause (on the Golan court's reading), but it would violate the First Amendment (as a viewpoint-based restriction on speech). The Golan plaintiffs' argument is that even if Congress had the power to pass the URAA under the Progress Clause, the law still violates the First Amendment.

Your most important point is your second one. At least as codified in 17 U.S.C. 109, the First Sale Doctrine by its very terms deals only with violations of the exclusive right set forth in 17 U.S.C. 106(3) -- the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending".

Don't forget 17 USC 114(b) -- a copyright holder's rights in a sound recording "do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording"

Review site Yelp has relatively recently implemented exactly the feature you're looking for, which allows you zoom in on a Google map and see all of the restaurants, divisible by cuisine, and sorted by user rating. I don't know if it has enough momentum in St. Louis to be useful, but it's extremely handy here in San Francisco.

The site is http://www.yelp.com/ , and the map feature is accessible at http://www.yelp.com/maptastic .

"Kings of A&R;" is down, but the Google cache is here.

Chris Castle is an extremely smart guy and a great music lawyer; in his posts to the Pho list, he has consistently impressed me. But this post is pretty far from the mark. BitTorrent doesn't use a lot of bandwidth because it has high overhead; it uses a lot of bandwidth because it's efficient. Does Mr. Castle just want the bandwidth to sit there unused? He then notes that many BitTorrent and p2p connections are excruciatingly slow as it is. But how does this move his argument forward?

Furthermore, even if you believe, as Castle seems to, that encryption is a sure sign of dastardly deeds, it certainly isn't "a form of hacking." What a curious thing to say.

His central point -- that net neutrality is bad because it doesn't let us make the legal packets go faster than the illegal packets -- is not a crazy one, though it is mistaken. But his rhetoric is awfully overblown.

I grabbed the opinion from PACER and have uploaded it to my blog. My post is available here.