Howard Bashman posted 20 Questions for Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit. As with all of Bashman’s previous interviewees, Birch’s answers are interesting and well worth reading, particularly this section on copyright law:
To quote my good friend, Professor L. Ray Patterson: “There is no legal concept so important to so many that is understood by so few as copyright.” To that I say AMEN! Copyright affects core activities of a democratic republic — learning and communication. Copyright places limits on what, where and when citizens may read, see and hear. But those limits are carefully circumscribed. Copyright was born out of censorship in England and the response to that censorship, the statute of Anne, was incorporated into our Constitution (Article I, Section 8, Clause 8). That clause together with the complementary free speech clause of the First Amendment stand as a bulwark in protecting the free flow of ideas in a free society. In our society of free men (and women) and free markets, the necessity for informed citizens and consumers is essential. Uninhibited access to information and the ability to process it, critically, is central to our way of life — politically and economically. But therein lies the problem, the marketing monopoly that inheres in copyright represents a conflict between two fundamental tenets of American society: free speech (and the concomitant right to hear it) and free enterprise. With the advent of the transmission copyright and the technological age of communication and learning, we are called upon to reconcile, balance and harmonize these forces in a manner true to our history and enriching to our future. From a legal standpoint I cannot think of a more challenging and exciting place to be — that is why copyright holds such interest for me. To some degree, the same may be said of trademark, trade secret, and unfair competition law as well. As I tell my clerks — in the law this is “where the action is”! That is why I find the law of copyright so fascinating and why I attempt to stay “current” in that body of law.
Also interesting is Judge Birch’s take on the Supreme Court’s decision in Eldred v. Ashcroft:
The result with Eldred is that it provides a windfall profit for a few monopolists (usually publishers, not creators) that results in a seismic fault in the structure for learning that is the framework for a free society. One can only hope that the Court will realize the error of its ways and correct a fundamental faux pas. Again, my criticism is made with great respect for the Court.
