October 24, 2002 · Lessig
Aaron makes the nice point that there should be an analog to “fair use” in the context of patent law. This is actually a point explored by a number of legal scholars, most extensively by Maureen A. O’Rourke in a 2000 paper that does not seem to be online. But he grounds his claim on the “the conflict between these two have, in copyright at least, traditionally been resolved by the concept of ‘fair use.’”
Not true, or better, that’s government speak. “Fair use” is one mediating device between the First Amendment and copyright. The Court has never held, and it would make not sense to hold, it is the only mediating device. It is a central part of our First Amendment claim in Eldred that there are other mediating devices between the First Amendment and copyright — i.e., duration. And that just as the government concedes that if “fair use” were changed by Congress, or if Congress decided to copyright ideas as well as expressioin, then “undoubtedly” ordinary First Amendment analysis would apply, so too if Congress changes the duration of existing copyrights, ordinary First Amendment analysis should apply. This was the argument of the author of the notion (adopted by the Supreme Court in Harper) that there is a “definitional balance” between the First Amendment and copyright–Nimmer–as he concluded that retrospective changes of copyright violated the First Amendment and the Copyright Clause.