DMCA, fair use, and "traditional contours" argument

Replying to Derek, about Eldred decision meaning:

I reject the argument that the "traditional contours" argument is just a "vague phrase" without any meaning. It's not just that one phrase; it's a thread that runs through her entire argument. If none of that argument is important, then she would not have said that the lower court had erred in any way - her opinion would be equal to a categorical first amendment immunity for all copyright legislation. Given that she specifically said no such immunity exists, I don't see how one can ignore the traditional contours portion of her argument.

Consider the whole paragraph:

The First Amendment securely protects the freedom to make or decline to make one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

Let me say, as a disclaimer, that I'm not a lawyer, not even a lawyer-in-training. But my reading of court decisions has made me very cynical. So when I encounter a passage such as the above, I don't see a ringing clarion-call for the ramparts of fair use. Rather, I hear, bluntly, a blow-off. A "But ...". Someone clucking "Now, that Circuit Court went a little too far, but don't you get any crazy ideas about First Amendment arguments overturning these laws."

The problem with Balkin's "pony-hunt" is where he's assuming exactly the conclusion he wants to reach (my emphasis:)

Does the DMCA "alter[] the traditional contours of copyright protection"? Yes, it does, in two respects. ...

Congress clearly did mess with those horizontal aspects in the DMCA, and so, under the logic of Eldred, it infringed on the "built-in free speech safeguards" of copyright law.

However, the "legal hack" argument of the DMCA is that it does not infringe on "built-in free speech safeguards" of copyright law, because it doesn't affect fair use in terms of a technical exception (as opposed to a substantive limit).

I am absolutely certain that in a DMCA Supreme Court opinion, they will analyze the issue of fair use extensively, instead of dismissing it out of hand. To this extent, I'll agree Eldred established fair use as a Constitutional requirement, rather than something which exists at the whim of Congress.

But I fear in that analysis, we are likely to see pages and pages explaining how in fact, in the court's view, the DMCA does not alter the "traditional contours of copyright protection" And the blueprint for that is in all the lower court decisions enthusiastically saying how the DMCA is not a fair use issue. Channeling Ginsburg, we'll get:

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection.

[Now insert: The DMCA doesn't affect idea/expression]

Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.

[NOW insert: There's no right to access, fair use is merely a technical exception not a substantive limit - this is the whole argument]

I can see this very easily. Very easily indeed.

I believe people are reading into the Court's fair use discussion, something they themselves deeply believe is true, and so desperately want the Court to endorse as true. I share these feelings. But that can be a fatal error. I sadly see little evidence that the Court is saying anything DMCA-unfriendly.

C'mon. Do they sound business/copyright-power unfriendly to you?

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)