Surreality Check

A Savage Writer's Journal

June 2003
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Last Month (May)

01 June 2003
Short Circuit

One of the raging controversies among those of us who practice appellate law involves the division of federal appellate responsibilities among the Circuit Courts of Appeal. With one exception—a critically important one—appeals from District (trial) Court decisions and verdicts are heard by a geographically based Circuit Court. Thus, if the case is heard in a District Court in New York, Vermont, or Connecticut, it will be heard on appeal in the Second Circuit.

As usual, California causes the problem. Or, rather, California is both a symptom of and cause of the problem of the Ninth Circuit. The Ninth Circuit includes all of the states lying west of the Rockies, plus all the US territories in the Pacific, plus Montana, Idaho, and Arizona. This is an unwieldy mess. The only real unifying principle is that these states are all community property states—but that is a lot less important now in state court, let alone Federal court, than it was in the early 20th century.

Many conservatives attack the Ninth Circuit on another ground: that its bench is too liberal, and issues too many liberal opinions that don't adequately respect "strict constructionism." Frankly, that's irrelevant; as a liberal, I could easily make the corresponding complaint about the Fourth (Maryland, Virginia, and the Carolinas), Fifth (Texas, Louisiana, and Mississippi), and DC (naturally enough, the District of Columbia) Circuits, in that opinions from those circuits all too often reflect a judicial activism based upon willful disregard of the constancy of change. At this time. In a couple of decades, things will shift. The Ninth Circuit, true, has a very high reversal rate in cases heard by the Supreme Court—if, and only if, one measures the rate against only the decisions granted review. The reversal rate of the DC Circuit is actually higher over the last decade when measured against the total number of reported cases. The Supreme Court hears about 70 to 90 cases drawn from across the nation each year. There were over 10,000 appeals to the Ninth Circuit in 2002 (one of which is our appeal in Ellison v. Robertson). When the Supreme Court says that, oh, ten of those decisions were incorrect, that is an "error rate" of less than 0.1%. This is simply not worth grousing about.

The exception to the "geography rule" is the Federal Circuit, which is a recent creation. Instead of getting its cases from a given set of states, the Federal Circuit hears cases based upon their subject matter and those arising from certain special courts (such as the Court of Claims, for claims directly against the US government). The subject-matter-based jurisdiction is by far the most important: the Federal Circuit hears all cases that involve patent claims. This has resulted in far greater uniformity in patent law over the last couple of decades, and a corresponding increase in confidence in the results and decrease in the Supreme Court's workload.

This leads to an obvious, but thus far unproposed, shift in jurisdiction that would significantly help the Ninth Circuit's situation: give anything arising under Article III, § 8, cl. 8 to the Federal Circuit. This would include both patents and copyrights, and arguably trademarks. The field of copyright law could certainly benefit from the kind of uniformity that the Federal Circuit's control over patent law has created. There are significant, and in some ways crippling, differences in details of copyright law among the Second Circuit (New York and traditional print publishing and old-line music publishing), the Sixth Circuit (Tennessee, and thus Nashville, a significant music center), and the Ninth Circuit (California and film, TV, much music, and much computer software). For example, an attorney trying to decide whether a particular depiction of a character might be copyright infringement has to pay as much attention to whether the case would be tried in New York or California as to the actual facts in the case. Given the increasing importance of intellectual property to the US economy, this seems a common-sense change. (Ironically, assuming that the decisions of the Federal Circuit would have been identical to those of the circuits below, we wouldn't have an appeal in progress in Ellison—because previously existing precedent that came out of the Fourth Circuit would have forced the District Court to rule in our favor.)

Why should this matter to authors? You don't really expect that I have no hidden agenda here, do you?

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Or you could just peruse the Baycon 2003 pictures.

03 June 2003
Impeccable Timing

I really didn't know that Dastar was going to be decided yesterday. However, it fits in very nicely with the boring, technical discussion of which Courts of Appeals hear which cases. Dastar is a hybrid trademark/copyright case out of California.

Dastar is a video repackager. It chose to repackage films of the Allied campaign in Europe that had been shot during the 1944–45 campaign, then partly assembled into a package to accompany Dwight D. Eisenhower's reminiscences published in the 1950s. This original package was released under license through the book publisher. Our good friends over at Fox were the licensee. Fox released the package on videotape in the late 1980s at a retail price of $74. Dastar went back to the original film shot in Europe, keeping to the general organizational plan of Eisenhower's book, and created its own parallel but not identical package in the early 1990s, which it released under the same title but bearing its name as the producer—for $25.

As is usual with these kinds of things, litigation erupted. Both the book publisher (Doubleday, now a unit of Bertelsmann AG) and earlier film distributor (Fox) sued Dastar, claiming both copyright and trademark infringement. Doubleday won its copyright claim, with its trademark claim being largely duplicative (and much less valuable in the book-to-film context). Fox's copyright claim lost, but its trademark claim was successful. The Ninth Circuit (see last time) upheld the trial court's ruling. Fox's copyright claim was dismissed early on because it had failed to properly renew the copyright on the films in 1977 when renewal was required. Its compilation was thus in the public domain, leaving it only with the trademark claim.

Relying upon a hypertechnical, but most probably correct, reading of the Lanham Act, the Supreme Court reversed unanimously. In effect, this means that Dastar cannot be held liable to Fox for its package, although the copyright verdict in favor of Bertelsmann is still hanging over its figurative head. Fox had only litigated one particular trademark theory—reverse passing off under Lanham Act § 45(a)(1)(A). The Court's holding was extremely limited, and relied on this legal error by Fox (specifically reserving § 45(a)(1)(B), a slightly broader provision that concerns not the goods and services themselves, but advertising and promotional materials) and the fact that the source films were in the public domain to keep Fox from using the Lanham Act to extend protection parallel to copyright beyond the term of the copyright. Justice Scalia wrote the opinion in Dastar, and was in the majority in Eldred earlier this Term.

to be continued

07 June 2003
Crockwork Orange

Yet another interruption. Given the stuff still left to come from the Court this month—some of which could come down tomorrow—I may never get back to boring old questions of jurisdiction. Not, I think, that my loyal reader will ever complain.

My opinion of Martha Stewart isn't exactly a secret. Thus, I take some glee in her recent indictment, and hope that she can bring the same insensitivity toward others to the exciting field of license plate design and manufacture that she brought to home decorating. But my glee is not because she's a woman, or because she's not originally from the upper class, as one pundit recently tried to proclaim. My glee is due to her arrogance.

Good grief—Martha Stewart is not only a director of the NYSE, but she's a former stockbroker! She should certainly have learned that the mere appearance of insider trading is unacceptable—and that coverups are even worse. Frankly, she's getting what she deserves, even before adding in her dubious taste in decorating and cooking, her mistreatment of assistants (including shameless credit-grabbing), the gross overpricing of her housewares at Le Mart du K, and her borderline anticompetitive business practices. I wouldn't care if she was a new incarnation of Nelson Rockefeller; her actions merit serious jail time, presuming the truth of the allegations in the indictment (and a substantial portion of them come from what are essentially public admissions).

11 June 2003
Extension Denied

The key issue lurking behind Dastar (see above) is the corrollary to the policy question lurking behind Eldred: what is the real limit on the length of protection afforded to non-utilitarian intellectual property? ("Utility" is a term of art, meaning that it has an actual use.) In Eldred, the Supreme Court essentially said that thus far Congress has not exceeded the mandate of Article I, § 8, cl. 8 of the U.S. Constitution, because despite all of the various extensions, copyright is still protected for only a "limited time." Dastar holds that the Lanham Act, covering trademarks, cannot be used to provide copyright-like protection for works that have fallen out of copyright.

Of course, the real problem here occurred back in the mid-1970s. The lawyer at Fox who was responsible for securing copyright renewals should be very glad that the statute of limitations on his probable malpractice—if he suggested renewal and got shot down, that's another thing, but it's extraordinarily unlikely—ran not later than 1980. Had Fox renewed its copyright properly, Dastar's "infringing" work would have been marketed during the term of the copyright, and thus this matter would never have reached the Court.

What I find even more curious, though, is Justice Scalia's almost thrown-away comment that a section of the Lanham Act that might have afforded protection to Fox (§ 45(a)(1)(B)) was not litigated. Not being in possession of the complete record or even a good grasp of the facts that didn't make it into any of the opinions, I have no idea why Fox's litigation counsel did not raise this as an alternative ground for judgment. All may not be lost; because of the procedural posture, it may be possible for Fox to present this argument to the trial court, as Justice Scalia virtually begs it to do. The decision below is on summary judgment. That does not foreclose a second motion for summary judgment or a trial on the alternative legal theory outlined by Justice Scalia.

There has been quite a bit of hysterical and/or off-the-cuff commentary on the net that Dastar means that plagiarism of out-of-copyright works is perfectly ok. Hogwash. There are issues other than those pointed out by Justice Scalia, particularly if any publisher is currently attempting to exploit the source work at the time of the plagiarism. For one thing, there is unfair competition under state law. For another, there is false advertising under the Federal Trade Commission Act. Then there is the tortlike contract theory (or is that contract-based tort theory?) of "interference with contractual advantage," a particularly viable theory in New York—which just happens to be the center of the US publishing industry.

to be continued… again

14 June 2003
Sideshow

The sideshow issue in Dastar—defining the appropriate legal theory under which to evaluate accusations of plagiarism—is the one that most writers care (or at least should care) about most. Dastar covers only a very limited legal circumstance: that rebuilding and relabelling an out-of-copyright compilation does not violate the Lanham Act's provisions concerning misstating the origin of goods or services.

And that's all.

Justice Scalia specifically stated that the Court was not ruling on other legal theories under the Lanham Act, or on works that remained in copyright. This latter position would require a serious revision of the Federal Rules of Civil Procedure—the sample complaint for copyright infringement also includes a cause of action for trademark infringement for the same conduct! I suspect also that the nature of the underlying material—a compilation, not original work—influenced the outcome of Dastar.

Consider this hypothetical circumstance, then: Peter Plagiarist takes Arthur Author's It Was a Dark and Stormy Late Afternoon and has it printed by a vanity press under his name as the author.

Interference with contractual advantage is probably the most fruitful theory. Every publishing contract (or at least every publishing contract from an even marginally reputable publisher) requires the author to warrant that he or she has the authority (pun intended) to sell the right to publish the work. Violating that warranty can lead to liability for both the publisher (negligent failure to ensure that the warranty was correct, thus violating the rights of the true author to attribution and false advertising) and the plagiarist. Further, most contexts in which plagiarism actually occurs have additional controls on misrepresenting another's work as one's own. Thus, Dastar does not mean that plagiarism is now a legally acceptable practice.

16 June 2003
Wired in Parallel

Finally returning to the question of who should hear copyright appeals, it's time to spring the hidden agenda, as the Supreme Court didn't issue any of the five remaining opinions that I expect to comment upon this Term. Quite frankly, it's a matter of familiarity breeding respect, not contempt.

The Federal Circuit hears more than just patent appeals now. A majority of the judges, however, had more than passing familiarity with patent law before they were appointed to that court. In turn, this has resulted in much better opinion writing by the Federal Circuit on patent issues than one found in appellate opinions prior to establishment of the Federal Circuit. By no means do I believe that the Federal Circuit always gets the law right, even aside from reversals by the Supreme Court (which, sadly, usually gets it wrong when it comes to patent law). However, the opinions themselves are more cogent, more to the point, more understandable to both specialists and nonspecialists.

As I remarked way back when, one of the major problems with the Second Circuit's opinion in Tasini is that it's overwritten and just plain not very persuasive. The opinions in Napster, Arriba Soft, and Leicester out of the Ninth Circuit are no better. The less said about the Sixth Circuit's opinion in Campbell, rev'd sub nom. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the better.

Frankly, having a single appeals court for dealing with a matter of Constitutional import—of the last six opinions the Supreme Court issued in copyright cases, five concerned serious questions of constitutional law—makes sense for another reason, too. In fact, it's the same reason that Congress is right now attempting to change the rules to make class actions filed in state courts easier to remove to federal court: the nefarious practice of forum shopping. Forum shopping occurs when a plaintiff's lawyer chooses to file suit in a court that he or she believes will give her a better chance at winning when there is a choice of valid courts. Unfortunately, there is a great deal of forum shopping in copyright law at this time. Consider, for example, the Suntrust matter (The Wind Done Gone). By all rights, this should have been heard in New York, where the novel was to be published. The plaintiffs forum-shopped for a more-local judge and filed in Georgia. Fortunately, the 11th Circuit got the result right; but this would have been much less of a potential problem in a single appellate circuit, because if the 11th Circuit had gone the other way it would have created a massive disagreement among the circuits on the standard that applies to prepublication injunctions based on purported copyright infringement.

Besides, it might mean that I wouldn't have to travel to California so damned much.

20 June 2003
Burning Bright

Celebrity images are an increasingly bizarre (and increasingly common) source of litigation. Although this certainly matters more to visual artists, it is hardly irrelevant to authors. The Sixth Circuit today made things both easier and harder. Easier, because this time it's the right decision. Harder, because it's in conflict with California.

This particular controversy arose when an artist painted Tiger Woods along with some "ghosted" images of dead white guys out on the course at August National. He called the painting "Masters of the Game," and sold a limited edition of numbered lithographs. Tiger's corporate alter ego—not legally, perhaps, but sometimes the law is an ass—sued, on the ground that this was an inappropriate use of Tiger's likeness for commercial purposes. The trial judge disagreed, holding that the artist had sufficiently transformed the basic image to create a real work of art, not just a "near photographic reproduction of the Three Stooges."

The United States Court of Appeals for the Sixth Circuit agreed with the trial judge and affirmed. Perhaps slightly different grounds would have been better; instead of the fact-intensive "sufficient transformation" test, concentrating on whether what was put into commerce was of independent value would make it easier for artists and authors to comply with the law. But that's another issue.

The real source of conflict, though, is the Three Stooges. That wasn't just a random quotation two paragraphs ago. The California Supreme Court decided not too long ago that T-shirts adorned with an artist's highly accurate rendering of the heads of the Three Stooges was an inappropriate commercial use of the Stooges' likenesses.

So, what's the difference, art professor? Exactly. One needn't be an art professor to see the real difference between these two cases: that the art depicting the Stooges was incidental to an article of clothing, but that the art depicting Tiger entered commerce only when sold for itself. This is an "artistic license-neutral" test that I suspect is the real issue, even if the courts refused to be so clear.

This matters to authors because names and descriptions can also be protected in a similar manner to likenesses. Perhaps this will create a Renaissance in literary work in the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee). Or, given that Elvis's home is there, perhaps not.

23 June 2003
I Don't Like Mondays (in June)

Those of us who seriously practice publishing law hate Mondays in June. Every Monday in June, every year, the Supreme Court issues at least one opinion. These opinions are usually a combination of the most-recently argued cases and the most difficult cases from earlier in the year. This year is no exception.

Every year, at least one Monday in June is disastrous. Today, for example. Each of the decisions I'll be discussing over the next few days was horribly fragmented; in fact, the most critical one doesn't even have a majority opinion. In no particular order:

24 June 2003
Don't You Smell That Smell?

The smell of money, that is. As I noted last month, the Supreme Court has held in essence that "money talks"—that is, expenditures of money in support of a political position or statement are expressive conduct protected by the First Amendment. Buckley v. Valeo, 424 U.S. 1 (1976). The ALA decision of yesterday, however, holds otherwise, at least by effect.

This really boils down logically to a single inquiry:

Is the legal definition of "obscene" a question of politics, or is there an objective, nonpolitical basis for such a definition?

Consider for a moment what would and would not qualify as obscene in the case law (at least in the last 30 years; earlier comparisons, before Miller v. California, 413 U.S. 15 (1973), would probably result in different analysis and quite possibly different answers). Depiction, however momentary, of actual penetration with the penis during consensual sex is "obscene." An actor walking up to a bound captive and slicing her throat, on camera, is not (e.g., Braveheart).

This rests upon an unproven assumption: that depicting (in words or otherwise) "real" sex is somehow potentially more damaging to children and to others than is cruel, heartless violence. I have tried to find any evidence that this particular issue has been studied in a rigorous scientific manner, but I have been unable to find anything. No doubt it would be incredibly difficult to get funding for such a study!

Since the early Enlightenment, sex has been an issue used in the West for political control because—unlike fatal violence—sex is something that is a realistic part of every human being's potential social life. This is not to say that not everyone can kill, under the right circumstances; it is only to say that those circumstances are not a realistic part of most Westerners' potential social lives. Certainly in the visual arts, however, various levels of sexual attraction have had immense importance in the development of those arts, while depiction of violence has seldom been very literal. Even when depiction of sex has been "clean" and "chaste" (e.g., Botticelli), it has been effective. However the same cannot be said for depiction of violence; quite possibly the most effective depiction of violence in the visual arts is Picasso's "Guernica," which is far from literal or naturalistic.

We don't need to ramble off into some hysterical assertion that it's all gender politics—although that is certainly a factor—or some kind of distinction inherent in the theory of "just wars". Try reading the erotica embedded in the Song of Solomon sometime. There is clearly a nonscientific, nonobjective basis for placing a given piece of art (or nonfictional representation, for that matter) into the "obscene" box or the "nonobscene" box. This particular distinction is outcome-determinative, because obscene material enjoys no First Amendment protection. In one of the most curious bits of self-serving redefinition without aid of a dictionary in American history, "obscenity" is defined as "nonspeech" for analysis under the First Amendment.

Don't worry too much. I'll get to the point eventually.

26 June 2003
Funhouse Mirror

As bad as was Monday's crop of decisions, today's (the last of the term) was almost as good, in a rather sick funhouse-mirror sort of way. Of most interest to writers, the Court dismissed the appeal in Nike v. Kasky until there is an actual trial below. Of secondary interest to writers, the Court reversed the Texas conviction of two men for consensual homosexual conduct and overruled the notoriously inept decision in Bowers v. Hardwick. This decision is of interest due to its reasoning more than anything else, which will be folded into the discussion of the ALA decision.

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So, then, in the broadest sense of "political" the act of defining a communication or expressive conduct as "obscene" is "political." It may well be objectively "correct" to do so; but it may not. Time for one last look at a technical legal issue, then we'll get to the pointy bit concerning the ALA decision and why it is logically indefensible and inconsistent with relevant precedent.

One doctrine in administrative law that presents constant opportunities for really expensive litigation involves who gets to set standards. The "nondelegation doctrine" proclaims that Congressional duties cannot be delegated to nongovernmental parties. It is acceptable for Congress to delegate duties to governmental parties, such as administrative agencies. There are a few exceptions; for example, the ability of various government departments to purchase motor oil "at the highest currently available commercial grade established by the Society of Automotive Engineers" implicitly assumes that the SAE's definitions of characteristics of various grades of motor oil will in fact be similar to or the same decisions that an administrative agency with equal expertise would have made.

There is a serious delegation problem inherent in the CIPA, though. The filtering mechanisms are treated as trade secrets by the vendors of filtering programs, so there is no ability to determine what meets the definition of "obscene" by anything other than a trial-and-error application. They won't tell us the criteria, but they know it when they filter it. Further, though, the definition of "obscene" or "harmful to minors" is far from objective. Consider, for example, the famous photograph of a Vietnamese girl of about 9 running naked toward the camera and away from a napalm strike. The objective characterization of this photograph—child, nudity showing genital areas, violence against children—should certainly classify it as "harmful to minors," and quite possibly "obscene." Subjectively, however, the censorship of the photograph is what is harmful to minors, because it keeps graphically depicted and therefore immediately verifiable information on the horrors of war and a shameful period in US history from minors, even high school seniors.

Yet more disturbing is the "community standards" rationale that underlies so much of the contemporary law of obscenity; this is also linked to the delegation problem. The Court wisely recognized that there is no national consensus possible on what constitutes "obscenity" (and, if pressed, would most probably make the same evaluation of "harmful to minors"). Miller v. California, 413 U.S. 15 (1973); see also Jenkins v. Georgia, 418 U.S. 153 (1974); Smith v. U.S., 431 U.S. 291 (1977). The problem here is defining the "community" in question. Although individual libraries are certainly parts of individual communities, does that community include everyone in the geographic area, or only library-card holders, or only those who use the Internet terminals at the library? How about a community like this one, in which "out of town" residents outnumber the "townies?" And, given that the Internet is inherently "borderless," does it constitute its own "community"? The Court would have been wiser to move away from trying to define "obscene" at all.

Next time, the pointy bits.

28 June 2003
A Sharp Stick in the Eye

The real question in most litigation involving the constitutionality of a statute that assertedly infringes a civil right is not usually the constitutionality of the statute. Whether a given law is constitutional or not in the abstract is largely a political question. Instead, the argument is over how closely that law will be scrutinized, and secondarily on how the courts actually do that examination. In other words, the argument is about whether a touch football game is one-hand or two-hand, and only then does anybody look to see whether there was an adequate touch.

The Court screwed up under its own precedents in upholding the CIPA. I discussed one of them last month.

The problem with the CIPA is not that obscene or "harmful to minors" speech should get no less protection than any other speech. Although I believe that to be the case, there are other viewpoints that may be valid. The problem is that nobody looked at the most troubling aspect of speech implicated by the CIPA: that the act of designating particular speech as obscene or harmful to minors is a political expression. Cf. Buckley v. Valeo, 424 U.S. 1 (1976) (the act of giving money to a political candidate is political expression). The CIPA marks an attempt to force libraries to participate in that speech by actively continuing the ratification of a third party's labelling of particular expressions as obscene or harmful to minors. This is far beyond even the illfounded extension of government control allowed in Rust v. Sullivan (holding that government refusal to fund healthcare providers who counseled women concerning abortion options did not violate the First Amendment), because what was at issue in Rust could be objectively defined in a manner that was not itself inherently political, and did not require continuing monitoring of new variations. Instead, the CIPA tries to enforce an "I know it when I browse it" standard upon libraries—and that designation is inherently political.

By not viewing the act of filtering as a political expression, the Court justified using the equivalent of two-hand-and-a-foot touch as the standard. Under the "rational relationship" test (or, when dealing with funding issues, the slightly stiffer "important interest" test), it is extraordinarily difficult to tackle the statute. Although there is some language in a concurrence stating that the CIPA would have passed the "strict scrutiny" test, that only got one vote out of nine. The Court focussed on the end result—the suppression of speech that, by its precedents, may not qualify as protected speech—because it is very difficult to say "I'm in favor of speech that is harmful to minors!" That, however, is not what the CIPA is doing; the "speech" in the CIPA is instead the designation and filtering process. Consider this as an alternative: a statute identical to the CIPA except that instead of "obscene" and "harmful to minors" material, it instead prohibits displaying material that shows persons smoking. Has the nature of the speech to be filtered in any way changed the nature of the statute's operation? Not at all. Just as sex-related medical information blocked by the CIPA is often of to minors but blocked by filtering software, the same goes for smoking. Then there is the whole issue of fostering willful ignorance of the past.

This ties into Lawrence v. Texas, too, because that decision (striking down the Texas ban on consensual "sodomy" between members of the same sex) involved explicit criticism by the Court of the choice of question in a previous case upholding the right of Georgia to criminalize the same conduct. Would that this Court had paid the same attention to properly defining what speech was at issue in the ALA decision.

My local library has decided to refuse federal Internet funding so that the CIPA won't be an issue here. Thus, local childen will continue to have the ability to look up one particular Super Bowl—because the Super Bowl officially uses Roman numerals, and there has been a thirtieth Super Bowl. What would be really interesting is this potential possibility: We have twenty-seven amendments to the Constitution, which are traditionally designated using Roman numerals. Thus, the CIPA could very well prevent libraries from displaying the text of a future thirtieth amendment, because it is associated with those three Xs. But then, recognition of irony has seldom been a strong point in judicial opinions.

30 June 2003
Marque and Reprisal

Some internet pirates got forty lashes today. They deserved it, too. The Seventh Circuit Court of Appeals (Chicago) ruled that the injunction against Aimster (now known as Madster) was fully justified and affirmed it. That means that "Johnny Deep" and the Aimster crowd are enjoined from operating until after trial because the harms they could inflict upon copyright holders were so serious.

Judge Posner's decision does a nice job of putting Sony in a valid factual context, and in particular in dealing with the question of "potential noninfringing uses" that has haunted every technological advance that has been even indirectly related to copyright since Sony was handed down in 1984. The irony that Sony itself deals with a technology—the Betamax—that has been essentially dead for the purposes litigated over for over a decade now is beside the point.

Of quite some significance, Judge Posner gave short shrift to Aimster's argument that the irreparable harm to it from being suspended outweighed the potential irreparable harm to the record company plaintiffs. He gave even less credence to the purported First Amendment issues.

Copyright law and the principles of equitable relief are quite complicated enough without the superimposition of First Amendment case law on them; and we have been told recently by the Supreme Court not only that "copyright law contains built-in First Amendment accommodations" but also that, in any event, the First Amendment “bears less heavily when speakers assert the right to make other people’s speeches." Eldred v. Ashcroft, 123 S. Ct. 769, 788–89 (2003). Or, we add, to copy, or enable the copying of, other people’s music.

In re Aimster Copyright Litigation,
No. 02-4125 (7th Cir. Jun. 30, 2003), slip op. at 23.

Take that, you scurvy scum.

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