Protecting Factual Compilations—First Amendment Issues by Eric Goldman

Protecting Factual Compilations—First Amendment Issues
Eric Goldman
Marquette University Law School

Overview of the Problem

  • What the heck does the 1st Amend. have to do with IP law?
  • The tension between IP and 1st Amendment
    • Copyright, TM & trade secret laws restrict speech
    • Copyright and 1st Amend. are both in Constitution
  • All Internet participation could be speech
    • Online speech and actions manifest via “packets”
    • Limits on “disseminating packets for X purpose”
  • Are we regulating theft or speech?  Property or public domain knowledge?


  • Arguments that 1st Amend. doesn’t restrict
    • Idea/expression dichotomy and fair use are only 1st Amend. incursions to Copyright clause (H&R)
    • Copyrights are categorically immune from 1st Amend. challenges (Eldred DC Cir.)
  • Arguments that it does
    • Copyright laws survive 1st Amend. review only if they produce more speech (Lessig)
    • 3 cases in past 12 months have applied content-neutral 1st Amend. scrutiny to copyright laws
      • Anti-circumvention restrictions (Corley and Elcomsoft)
      • Satellite Home Viewer Improv. Act (CBS v. Echostar)
      • All 3 provisions survived intermediate scrutiny
  • Eric’s take
    • Expect more 1st Amendment challenges as copyright law extends beyond “writings”
    • Copyright clause creates “Constitutional Umbrella” over copyright laws that protect authors’ writings
    • Speech restriction concerns should be handled through Copyright clause interpretation

Bartnicki v. Vopper (121 S. Ct. 1753 (2001))

  • Wiretapping law restricts redistributing contents of an electronic communication knowing that the content was obtained by an illegal interception
  • Law violates 1st Amendment when the contents were a matter of public concern
  • But 1st Amendment doesn’t protect criminal acquisition of information, even if a matter of public concern
  • Bartnicki’s effect on copyright, trade secret, misappropriation, trespass and contract laws?

Info Misappropriation (hot news; database laws)

  • Arguments that the 1st Amend. restricts
    • Unless enumerated in Chaplinksy, all speech restrictions trigger 1st Amend. analysis (Bunner)
      • Trade secret laws aren’t under Constitutional Umbrella
  • Arguments that it doesn’t
    • 1st Amend. only covers forms of social interaction that realize 1st Amend. values (R. Post)
      • Misappropriation laws will be curtailed only when info is matter of public concern
  • Eric’s take
    • If viewed as anti-theft or unfair competition laws, the 1st Amend. applies but the laws survive unless they restrict matters of public concern

Trespass to Chattels/CFAA

  • Arguments that the 1st Amend. restricts
    • Internet server is public forum (Cyber Promo arg.)
    • State enforcement of trespass laws is a content-neutral regulation of speech (Hamidi amici)
  • Argument that it doesn’t
    • No state action (Hamidi, Cyber Promo)
      • Web servers aren’t company towns or public utilities
  • Eric’s take
    • As applied to factual compilations, courts will likely treat trespass laws as anti-theft personal property protections rather than as speech restrictions
    • Bartnicki may limit protection of extracted data


  • Trespass and core copyright laws probably won’t be subject to 1st Amend. analysis
  • Misappropriation and non-core copyright laws should be subject to 1st Amend. scrutiny
    • But content-neutral laws will survive unless matter of public concern
  • With increasingly expansive IP legislation, expect more 1st Amend. challenges from SIGs unable to buy statutory exceptions (Lemley)
  • The 1st Amend.’s small role doesn’t mean that more protection of factual compilations is good policy!