1. Law 507 | Intellectual Property | Spring 2003
Intellectual Property & the Constitution II First Amendment Limitations
Class Notes: April 16, 2003
Law 507 | Intellectual Property | Spring 2003
Professor Wagner

2. Today’s Agenda Course Evaluations (15-20 minutes)
Cleanup: Structural Limitations
First Amendment Limitations on Intellectual Property
4/16/03
Law 507 | Spring 2003

3. Structural Limits on IP
Eldred, continued . . .
Why would Justice Breyer come out differently? (Who has the better argument?)
Locating Eldred: Can you reconcile Eldred with the recent jurisprudence in . . .
The Commerce Clause (e.g., Lopez)
The Eleventh Amendment/State Sovereign Immunity
Didn’t each of these lines of cases involve nontextual limitations on the scope of Congressional power.
After Eldred:
What limits exist on term extensions? Retroactive term extensions?
What policy options exist? (Does the Breyer analysis suggest any?)
4/16/03
Law 507 | Spring 2003

4. Structural Limits on IP
Eldred, continued . . .
How much does Eldred really matter?
How many works are still being commercially exploited after life + 50 years? (What has happened to the rest?)
Aren’t the works that are commercially exploited after life+50 years precisely those we’d want to grant protection to?
Do the two observations above suggest any policy approaches?
What does Eldred suggest about the viability of structural challenges to IP laws (at least those based on Article I, Section 8)?
4/16/03
Law 507 | Spring 2003

5. First Amendment Limitations on IP
Universal Studios v Corley (2nd Cir. 2001)
The three big questions:
Is computer code (source code) speech for 1A purposes? (Should it be?)
Does the prohibition against posting DeCSS implicate the 1st Amendment? (How?)
Does the prohibition against posting DeCSS run afoul of the 1st Amendment? (Why or why not?)
4/16/03
Law 507 | Spring 2003

6. First Amendment Limitations on IP
Universal Studios v Corley (2nd Cir. 2001)
The court notes that the DMCA issue raises the question of when a law that ‘affects’ speech is unconstitutional under the First Amendment
Is this a special form of problem, or generally applicable to many situations?
What analysis does the court use to determine the 1A status of the DMCA?
Following this analysis, and reviewing the holding of Harper & Row, what does this suggest about 1A challenges to copyright generally?
4/16/03
Law 507 | Spring 2003

7. First Amendment Limitations on IP
After Corley and Harper & Row, can the government restrict the fair use requirement?
What does Eldred suggest about this?
Any theories about what’s going on here?
4/16/03
Law 507 | Spring 2003

8. 4/16/03
Law 507 | Spring 2003

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Law 507 | Spring 2003

10. 4/16/03
Law 507 | Spring 2003

11. Next Class Intellectual Property & the Constitution II
First Amendment Limitations
4/16/03
Law 507 | Spring 2003