Protecting copyright through new technologies must accomodate our constitutional rights to free speech.

We are, of course, in the midst of a conflict between existing intellectual property laws and the radical changes to the material conditions on which those laws were built. Producers of music and video scream bloody murder because their products can be reproduced and disseminated at little cost, an entirely different situation than when that reproduction required expensive equipment and copies could only be sent out in phyisical form one at a time.

These are truisms, but they are the truisms that are at the basis of the intellectual property wars through which we are living.

There’s a new skirmish on the horizon, brought to my attention by Brian Ledbetter of Snapped Shot. According to Computerworld, “MySpace and Viacom International-owned MTV Networks today moved to resolve some key online video issues by tapping a new technology that inserts advertising into any videos uploaded by users to MySpace — whether they’re authorized or not.”

In other words, if you upload a copyrighted clip, the new technology will insert advertising into the clip whether you want it there or not. The motivations of the copyright owners are obvious. They want money for the use of their copyrighted materials, which they consider their “property.” But, while copyrighted materials are “intellectual property,” they are not property in the sense that real estate, money, and cars are property.

Here’s the rub: the technology poses some serious First Amendment problems. The fair use of copyrighted materials without consent is not an infringement of the copyright owner’s “property” rights.

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001).  In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court). (And, incidentally, I am a member of the board of directors of the local chapter of the Anti-Defamation League.)

So here’s the problem: MySpace and Viacom-MTV are creating technology that will insert advertising into speech that is mine. The mere fact that this speech will be composed in part of materials derived from their copyrighted works does not make my speech theirs; it does not give them the right to inject their advertisements into my own creations. They may think I’m stealing their property if I take a sample of one of their copyrighted works and use it to create something new. I think they’re wrong. But I also think they’re doing the equivalent of putting a billboard on my front lawn when they put their advertising in that new creation of mine. And I think that’s wrong too.