News: The US military has launched a beta site called TroopTube, which is basically a YouTube-like site for U.S. military.
Analysis: A nice way to keep military in touch with their families. The use of “TroopTube” is interesting, though. I wonder when trademark concerns becomes a problem for YouTube. We already have “GodTube” “WeGame,” and “YouPorn.” I wonder if a site could called itself “ITube” or “WeTube” or “MyTube,” without running into trademark problems.
Copyright Alliance files amicus brief asking Supreme Court to review legality of Cablevision’s RS-DVR system under copyright lawNovember 6, 2008
News: For the first time ever, the Copyright Alliance has filed an amicus brief asking the Supreme Court to reverse the Second Circuit’s ruling in favor of Cablevision’s RS-DVR system. The system allows Cablevision subscribers to record shows (time-shifting), with the recordings stored on Cablevision servers. (More from IPLaw 360 and here) Fenwick did an analysis of the case here.
Fairman critiques FCC v. FOX case today at Supreme Court over “fleeting expletives,” aka the “F-word”November 4, 2008
Prof. Chris Fairman, “The FCC, the F-Word, and Fox’s Fuck-Up”
I heard “F-word,” “S-word,” “dung,” and even a “Gollywaddles” (courtesy of Justice Scalia), but the two words I was waiting to hear—fuck and shit—weren’t uttered by counsel or the Court this morning in oral argument in FCC v. Fox Television Stations. What is even more amazing is that this case was about the words fuck and shit. More specifically, can the FCC punish broadcasters for the isolated or “fleeting” use of these two expletives? If oral argument is any indication, the networks better plan on keeping a bar of soap around for every future live broadcast.
Back in 2002 at the Billboard Music Awards, Cher said “fuck ‘em” in her acceptance speech. The next year on the same awards show, Nicole Richie explained that it wasn’t so “fucking simple” to get “cow shit out of a Prada purse.” Finally in 2006, the FCC orders that both broadcasts violated its policy on indecent language. The only problem is that in order to find these isolated, fleeting uses of fuck and shit actionable, the FCC had to change its own policy. The agency overturned its own precedent and declared all uses of the word fuck as inherently sexual and therefore within the scope of the indecency definition. Then it overruled all prior decisions to the contrary and found the fleeting and isolated use was irrelevant.
Fox successfully challenged the FCC’s new policy in the Second Circuit where a split panel found the FCC’s policy shift was arbitrary and capricious in violation of the Administrative Procedures Act. And in some detailed dicta, the majority noted that it’s probably unconstitutional to boot. In the Second Circuit oral argument, Fox Television’s advocate, Carter Phillips, freely used the words fuck and shit. So did the judges. The odd man out was the FCC lawyer; he used the euphemisms “F-word” and “S-word.” This pussyfooting around by the FCC was downright Victorian.
When the Supreme Court granted the FCC’s cert petition, I was expecting a real showdown between the prudish FCC and the worldly Fox. This time, however, the FCC captured the discourse. The newly appointed Solicitor General Gregory Garre argued for the FCC—nothing but euphemisms. (Garre did manage a few laugh lines though like the specter of “Big Bird dropping the F-Bomb.”) Carter Phillips again argued for Fox. But where were the four-letter words? Nothing but “F-word” and “S-word.” It was if Fox conceded that these were bad words—too coarse to utter in the Supreme Court. None of the Justices were going to take the lead either. The closest thing we got to a four-letter word was Justice Stevens’ use of “dung.”
Without the dirty words, what had the potential to be a landmark First Amendment case ends up being a vanilla Administrative Procedures Act agency review. And as General Garre pointed out, the Court has never overruled an agency under the arbitrary and capricious standard where they have articulated some reason for its policy. Justice Ginsberg seemed sympathetic to reaching the constitutional questions given the tip of the hand by the Second Circuit, but no on else seemed to bite on that. There was no argument directed to merits of the constitutional claims. This will be decided as an administrative law case. Too bad.
As an APA agency review case, it doesn’t look good for Fox. Chief Justice Roberts and Justice Scalia both seemed to believe the FCC offered an explanation for the policy shift. Though Justice Thomas was silent at argument, he’s a likely “me-too” for reversal. (To be accurate, Thomas wasn’t silent; he had an on-going side bar conversation going on with Justice Breyer. I wonder what they were talking about? Swapping dirty jokes?) So that looks like three for the FCC.
Justice Ginsberg is a likely vote for affirming the Second Circuit. Since Pacifica and the First Amendment are avoided, Justice Stevens is free to join without having to revisit his concurrence in the case that created indecency regulation in the first place. Justice Souter is a possible third vote for affirming. His questions on what the FCC did to determine that a policy shift was needed on fleeting expletives highlighted the absence of studies or research. While he also solicited (and received) a concession from Phillips that FCC articulation of increased complaints could justify a policy change, the question itself illustrates the concern: the FCC didn’t use this as a justification in announcing the policy shift. So that’s a soft three for Fox.
Who’s up for grabs? Justice Breyer has traditionally taken a deferential attitude toward agency policy making. His questions about the practical side of tape delays and V-chips don’t offer much to show his leaning. Justice Kennedy interjected a couple of queries but nothing revelational. Justice Alito was sphinx-like.
I think it’s likely that the Court will reverse the Second Circuit on its arbitrary and capricious holding under the APA and remand. The FCC would then have a chance to squarely address the constitutional issues. And the Second Circuit will get to rule. And we’ll all be back in front of the Court in term or two with the real question: how is it constitutional for five unelected FCC Commissioners to impose a content based restriction on speech that is unquestionably protected by the First Amendment.
Or maybe not. New appointments to the FCC could temper the agency’s aggressiveness. And if it’s okay for the agency to flip-flop on fleeting expletives, they can certainly flip back.
Christopher M. Fairman
November 4, 2008
This happened in Arizona, but we have the same problem in Ohio!
News: I already discussed the letter the John McCain camp sent to YouTube regarding McCain videos removed because of alleged copyright infringement. In YouTube’s response, it asks Senator McCain for help in reforming copyright law:
McCain camp sends letter to YouTube about DMCA takedowns of McCain videos for alleged copyright infringementOctober 15, 2008
News: Several people have alerted me to the copyright controversy brewing over at the McCain-Palin camp, and at YouTube. McCain’s attorney sent YouTube a letter–addressed to CEO Chad Hurley, GC Zahavah Levine, and copyright counsel Bill Patry–asking YouTube to make a determination that McCain’s unauthorized uses of copyrighted content are clearly fair uses and therefore should not be removed after a DMCA complaint. Apparently, several McCain videos–McCain’s letter says “numerous“–have been removed by YouTube after YT received DMCA notices from copyright holders alleging that McCain had infringed their copyrights by posting videos with their content, which McCain’s camp says consisted only of clips of 10 seconds or less of copyrighted news broadcasts.
The DMCA does have a “counter-notice” procedure that allows people to seek the re-posting of videos taken down under a DMCA notice, but the process takes between 10 to 14 days for that to happen, which the McCain camp says is not quick enough for the impending election.
Analysis: First things first. Against today’s backdrop of the financial crisis, this controversy over YouTube videos does seem, well, somewhat trivial. Also, there is some irony in complaining now about “overreaching copyright claims” under the DMCA, a law that I believe McCain voted for in 1998. I am generally sympathetic, though, to the McCain camp’s call for liberal fair use in the context of a presidential election. I’ve written an article arguing exactly that (click here).
One of the problems for YouTube, though, is that the fair use doctrine is notoriously vague, to be judged on a case-by-case basis. What is “clearly” fair use may depend on the eye of the beholder. Companies like YouTube follow the DMCA notice-and-takedown procedure in a more cautious manner, in order to avoid being sued. But the DMCA itself is vague in places — that’s why YouTube faces 2 major copyright lawsuits asking YouTube to pay damages of over $1 billion.
It’s just too bad we haven’t had any discussion by either presidential candidate about reforming the DMCA at any point in the campaign season. And with the financial crisis, copyright issues might never get discussed before the election. The frustrations McCain’s lawyers have expressed to YouTube are not new–they are ones with “overreaching copyright claims” that regular people have faced since the DMCA regime was enacted. Don’t get me wrong: I’m all for a DMCA safe harbor for Internet companies, but the one we have may need some tweaking or clarification.
I do wonder a little bit about what McCain videos have been removed, and what news networks have actually sought their removal. The McCain camp says “numerous” McCain videos have been removed from YouTube. How many are we talking about? I follow all the presidential videos pretty regularly, and I know only of 1 such McCain video involving a clip of Katie Couric that had been taken out of context and used in a negative ad against Barack Obama to suggest inaccurately that Couric was commenting about “sexism” in Obama’s use of “lipstick on a pig.” Is that kind of use of Couric’s broadcast, taken out of context and used in a negative attack ad, a fair use? Hard to say–possibly, debatable at least. Without a case or law saying that this kind of use in presidential campaign material is presumptively or per se fair, YouTube is in a difficult spot to do what the McCain camp proposes. It would be helpful if the McCain camp identified which videos have been removed and posted them all on the McCain website, where it has a section for videos. Then we can know what copyright holder or news network sought the takedown (and try to understand its basis for doing so), and see if all of it should be considered fair use or not.
UPDATE: YouTube wrote a letter to McCain denying his request, citing both practicality and the impossibility of determining fair use with reasonable certainty without a court ruling. “Lawyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use,” wrote the YouTube general counsel. (More from PC mag and from ars technica.) Lessig Blog has a copy of YouTube’s letter.
Another option for the McCain camp is to send a letter directly to the news networks that have sent DMCA notices to take down McCain videos, and press their fair use claims with the networks.
News: Video producer Brave News Films, represented by Tony Falzone at Stanford Center for Internet & Society and the Fair Use Project, has sued radio host Michael Savage for an alleged improper DMCA takedown of BNF’s video on YouTube that replayed about a minute of Savage’s rants allegedly about Muslims. YT took down the video after receiving a DMCA notice of alleged copyright infringement and even suspended BNF’s YouTube channel temporariliy. (The channel is back up.)
According to the LA Times Savage’s producer said Savage was not responsible for the DMCA notice in the first place. (The notice is supposed to have the identity of the complainer, so it should be easy for YouTube to reveal who complained.)
Exactly 13 years to the day he was acquitted of murdering Nicole Brown and Ron Goldman, OJ Simpson was convicted of burglary and kidnapping related to sports memorabilia.
News: Brad Stone has an update about the lawsuit here. I hope to get my hands on the complaint, but it may be under seal.
News: The movie studios have sued RealNetworks for its program RealDVD, which apparently enables consumers to make “backup” DVDs. (More from WSJ) The studios argue that the RealDVD violates the anti-circumvention provisions of the DMCA.
RealNetworks already has a suit in San Fran raising the same issue and it has asked the case to be heard there.
NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast?September 17, 2008
News: NBC Universal General Counsel Rick Cotton reports the amazing success of keeping unauthorized copies of NBC’s broadcast of the highly successful (Mike Phelpsian) OIympics in Beijing off the Olympics. Cotton says that less than 1% of Olympics videos online were unauthorized.
NBC used a 2 pronged strategy: (1) get other online providers to use digital fingerprint technology to filter out those Olympics video that didn’t have the fingerprint–Cotton says 80% of the success is attributable to this strategy; and (2) using Web crawling technology from Vobile to police the web for unauthorized clips, which allowed NBC to send DMCA notices to sites.
Cotton beamed about YouTube’s digital fingerprinting technology the most. According to BusinessWeek, “By the way, Cotton says the most impressive automation occurred with YouTube. While the online video giant has had a reputation with many broadcasters for not doing enough to protect copyrighted content (not to mention a $1 billion lawsuit from Viacom), Cotton says YouTube worked closely with NBCU. Also, he says YouTube’s homegrown content recognition system worked effectively. This should come as a surprise to many of my sources, who were convinced that Google was doing as little as possible to perfect a technology whose reason for being is to keep content off its site. ‘The most extensive automation we had was with YouTube. Their system worked very well,’ says Cotton.” (More)
Analysis: This evidence from NBC Universal provides a devastating blow, in my view, to Viacom’s copyright case against YouTube. When coupled with the recent DMCA safe harbor victory for Veoh, NBC Universal’s backing of YouTube’s fingerprinting anti-infringement technology significantly bolsters YouTube’s defense that it goes above and beyond the DMCA safe harbor.
I have to admit that I marveled at the lack of unauthorized Olympics videos on YouTube. Now that NBC Universal has explained the amazing success of YouTube’s fingerprinting technology, Viacom and the other plaintiffs suing YouTube will be hard-pressed to argue that YouTube is not doing enough to combat copyright infringement. The 2008 Olympics may turn out to be not only a huge victory for Michael Phelps, but also Chad Hurley and the team at YouTube.
I think a key lesson of NBC’s success in keeping unauthorized Olympics videos off the Internet is that copyright holders must share the burden in protecting their copyrights. Yes, copyright holders must spend money to enforce their copyrights! Too often in the rhetoric against YouTube some of plaintiffs seem to want to shift the expense of enforcement to YouTube. The DMCA, however, always envisioned a sharing of that burden under a notice-and-takedown system.
News: As reported earlier, CNN reported that Universal Music Publishing and Sony BMG sent the McCain camp a letter asking it to stop playing Heart’s “Barracuda” on the campaign trail after the song was used at the Republican National Convention. (Sarah Palin’s nickname is “barracuda.”) Universal Music Publishing presumably owns the copyright to the musical work, while Sony BMG owns the copyright to the sound recording. The American Spectator reports that the McCain camp played the song “Barracuda” at another stop in Ohio just yesterday.
Analysis: It’s not clear what’s going on based on the limited amount of information given. It’s unlikely that the McCain camp has a blanket license to use the copyrighted song for the rest of the campaign season. So once the copyright holders Universal and Sony BMG sent the letter demanding that the McCain camp stop playing it, that would seem to make subsequent uses by the McCain camp unauthorized and infringement. Techdirt blog suggests that these uses may have been licensed by the venues (such as through an ASCAP license). CNN is now reporting that the McCain camp said it had obtained a license for the RNC Convention. There’s been no statement by anyone to verify a license for subsequent uses. Another interesting wrinkle is that the copyright holders appear to have put the McCain camp on notice not to play their copyrighted song. The scenario would present an excellent exam question for my copyright class.
More copyright problems for McCain?: CBS sends DMCA notice over McCain’s unauthorized use of CBS segment in campaign video re: “lipstick on a pig”September 10, 2008
News: The John McCain camp appears to be in trouble again for alleged copyright infringement. CBS today sent YouTube a DMCA notice about the McCain camp’s negative ad that insinuated Sen. Barack Obama’s use of the saying “lipstick on a pig” was a reference to Gov. Sarah Palin. (Obama refuted that claim in this video.) Part of the McCain ad used a CBS segment of Katie Couric, apparently spliced in by the McCain camp without permission. CBS has asserted the McCain camp’s unauthorized use violates CBS’s copyright in the segment. Under the DMCA, YouTube must take down the video to fall within the safe harbor for Internet sites.
YouTube has now yanked John McCain’s video from YouTube, consistent with the DMCA notice-and-takedown procedure.
Analysis: This is not the first run-in with alleged copyright infringement for the McCain camp. As recounted on an earlier post, FOX News and Jackson Browne have all complained to the McCain camp about alleged unauthorized use of their copyrighted materials. Universal Music Publishing and Sony BMG have also complained about the use of their copyrighted song “Barracuda” (by Heart), although it’s not clear — based on the CNN news reports — whether McCain has a license (or not) to play the song at the campaign stops where it’s being played. It will be interesting to see if the McCain camp continues to run that same ad on TV and, if so, what CBS’s response will be.
The Couric segment seemed to be taken out of context and to be not directly related to the context of the “lipstick on a pig” controversy. (I couldn’t tell for sure just based on watching the video.) If that is the case, any fair use argument is greatly diminished.
News: The district court in the Northern District of California decided in favor of Veoh, an online video sharing site, holding that it fell within the DMCA safe harbor. Michael Arrington of Tech Crunch has 2 excellent analyses of the decision here and here. One of the key parts of the ruling is that a video sharing site does not become disqualifed from the safe harbor by setting up a system that converts videos into a different (here, Flash) format (the plaintiff porn entertainment company claimed that such conversion showed that Veoh had control over the content). Arrington also lists a number of key parts of the decision on his blog.
Analysis: I am poring over the opinion myself and hope to have a followup soon. The copyright cases against YouTube are in New York, so this precedent is not binding in that jurisdiction. But it is undoubtedly helpful to YouTube’s case there.
UPDATE: Here are some of the most important principles the court appeared to embrace in the Veoh case:
1. A video sharing site doesn’t have the “right and ability” to control infringing activity just by setting up a system where users can upload videos. The site’s control over its system is different from control over the content uploaded by users. Op. at 28.
2. The presence of professional content in videos (without copyright notices) that are posted on video sharing sites do not necessarily create a “red flag” of infringing activity. Op. at 21-22.
3. Court completely rejects argument that Veoh should have prescreened every video finding that practically infeasible (and in any event it’s not required by DMCA). Op. 28
4. The court says that Veoh policed its system as presently architected, and that was reasonable enough under the DMCA. Op. 29 A lot of what Veoh did (e.g., hashing or fingerprinting technology) appears to be what YouTube is doing as well.
News: Singer Jackson Browne filed a copyright infringement suit against John McCain, the Ohio Republican party, and Republican Party for using his song “Running on Empty” in a campaign video, but without permission from Browne. (More from Wired)
Analysis: I wish I could watch the video to hear how much music was taken. I’ll try to say more later. If I’m not mistaken, McCain ran into some earlier copyright troubles with FOX (if not others) and so did Barack Obama. But this is the first copyright lawsuit filed against a presidential candidate, perhaps ever.
News: Larry Lessig says his last law + tech book will be out this fall. It’s titled “Remix.” More details here
News: Noted copyright lawyer William Patry officially ended his copyright blog on Friday of last week. His reasons are explained in the only post that remains on his blog (of 4 years). He now works for Google, so that’s one of his reasons b/c too many people confused his personal comments as Google’s comments. He also finds the state of copyright law too depressing.
Analysis: A shame.
News: The Culture, Media, and Sport select committee in the UK has recommended that YouTube and other video sharing sites monitor their sites more proactively for inappropriate content, in order to protect kids. (More) Hat tip: techdirt.
News: YouTube was sued again for copyright infringement, this time by Mediaset in Italy for allegedly infringing its programs in 4,643 unauthorized clips on YouTube. Mediaset seek 500 million Euros ($779 million US). More.
Analysis: YouTube already faces 2 major copyright lawsuits in the U.S. (one by Viacom for $1 billion and a class action lawsuit, both in NY). YouTube also was sued by Telecinco in Spain, and some news reports indicate that YouTube lost. The lawsuit in Italy just adds to YouTube’s headaches. The U.S. cases will test the scope of the DMCA safe harbors. I am not sure whether Spain and Italy have any comparable safe harbor.
The decision sounds right to me. What the FCC has been doing lately in restricting speech is very questionable.
Negative publicity forces Viacom to narrow scope of discovery request from YouTube, redacting usernamesJuly 15, 2008
News: Michael Arrington of Tech Crunch has the lowdown on the agreement reached by Viacom and YouTube to allow YouTube to redact usernames and IP addresses from the logs of videos watched on YouTube.
Analysis: At least Viacom is not being pig-headed about the way it litigates its copyright lawsuit against YouTube. Although Viacom initially sought the usernames and IP addresses and persuaded the court to force YouTube to turn the information over (potentially in violation of the VPPA), now Viacom realizes the public relations nightmare that was brewing among users of YouTube — who also may watch Viacom shows. This is a sensible narrowing of Viacom’s discovery request because Viacom really wants to go after YouTube, not smaller fish. Also, it probably takes care of any VPPA problem.
YouTube users revolt against Viacom for seeking histories of all videos watched on YouTube, including user names of people who viewed videosJuly 8, 2008
News: YouTube is in serious damage-control mode, after being ordered by Judge Stanton to turn over, among other things, (i) apparently all videos ever removed from YouTube after being flagged, the videos number in the millions; and (ii) for every video ever uploaded on YT, a log of the viewing history of YouTube users, including the IP addresses of users plus their usernames, and the time they watched the video. It’s quite possible this order violates the privacy statute VPPA (as discussed in another post below), but, at this point, not sure YouTube is asking the court to reconsider its order or seek an immediate appeal to protect the privacy interests of its users.
On its blog, YouTube said its trying to convince Viacom to allow YT to redact the usernames and IP addresses to preserve user confidentiality. We’ll see what happens.
As you might expect, many YouTube users are angry about release of their viewing history. Here’s a typical angry comment posted on YT:
“I have an idea, STOP LOGGING IPs. It bothers me that you guys are keeping track of viewing histories by IP for such a long time. Sure, a simple IP doesn’t give out personal information but these bastards are known to contact service providers to attempt and retrieve the personal details attached to an IP, or at least to send scare tactic emails to their customers. You have a staff of friggin geniuses at your disposal, why not get them to come up with a way to REALLY PROTECT our privacy. It was fun watching videos here, but I think I’ll avoid YouTube videos from now on, log out of my account for good and if absolutely necessary, view videos through a proxy. Thanks for trying, but we know and you know you can try a lot harder.”
Analysis: One thing that surprises me is that apparently YouTube keeps the files of all videos ever removed from YouTube — 12 terabytes of files + millions of videos. Offensive videos, pornographic videos, hate videos, apparently all saved by YouTube. Maybe it just takes more work to completely remove them from YT’s servers, or maybe YT needs the deleted files to try to stop copycat repostings of the deleted files?? I don’t know.
Judge Stanton orders YouTube to reveal usernames, videos watched, + viewing history over YouTube’s privacy law objectionsJuly 3, 2008
News: In the Viacom v. YouTube copyright lawsuit, Judge Stanton ordered YouTube to disclose “all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website,” which includes “for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.” You can read the opinion by clicking here.
EFF argues that the court order violates the Video Privacy Protection Act (VPPA). The Judge apparently didn’t think it applied (dismissing it in a footnote).
Michael Arrington of Tech Crunch agrees with EFF and lambastes Judge Stanton for the ruling, though with the “utmost respect.”
Mike Masnick of Tech Dirt agrees with EFF and thinks the disclosure of usernames and videos watched violates VPPA.
Analysis: In terms of the privacy law, the key question is whether online videos fall within “prerecorded video cassette tapes or similar audio visual materials” under the VPPA. I haven’t read the statute yet, but my initial “ordinary meaning” interpretation of those words would be that online videos clearly are “similar audio visual materials” to video tapes. There’s really not much difference between online video and a video tape.
Viacom said that it would handle the user data confidentially and just wants to prove its case (more). OK, even if YouTube users can trust Viacom, there are numerous other plaintiffs involved in the class action lawsuit against YouTube who will also receive the information.
Another thing wrong with Judge Stanton’s analysis is the notion that a YouTube “login ID is an anonymous pseudonym” (p. 13). There are plenty of YouTube usernames that are either actual birth names–Esmeedenters, Terranaomi, Judsonlaipply, TayZonday, etc–or usernames that are readily identifiable people in the YouTube community–Renetto, Smosh, Lisanova, Justine, Paperlillies, Hotforwords, Valsartdiary, etc. Sure, many YouTube usernames are not well known, but many others are.
News: Michael Arrington at Techcrunch has the complaint filed by EMI today against VideoEgg + Hi5. Once I read the complaint, I’ll provide some analysis.
News: I wanted to thank Tom Goldstein at Scotus blog (the premier site for Supreme Court action) and Dan Slater at Wall Street Journal’s law blog for referencing my last post that suggests how the Supreme Court’s decision in the gun case (DC v. Heller) is helpful to speech technologies + the freedom of the press.
The basic pivot point that connects the 2nd Amendment and the Free Press Clause in the 1st Amendment is that they are the only 2 provisions in the Constitution in which the Framers sought to protect a right to a technology — the right to “keep and bear arms” in the 2nd amendment and the right to the freedom “of the press” (meaning the printing press). I’ve outlined the history of the Free Press clause in an article you can download here. My article shows that the Framers clearly intended the Free Press clause to be a limit on the Copyright Clause, specifically to prevent the government from directly regulating or restricting the technology of the printing press. Indeed, the history behind the Free Press clause is strikingly similar to the history behind the 2nd Amendment in terms of both the English abuses in restricting a technology (guns or the printing press) and the Framers’ subsequent ratification debate between Antifederalists and Federalists.
If the Supreme Court follows the same approach in interpreting the history and text of the Free Press Clause as it employed in the gun case, then the result is likely to be that Congress’s efforts to restrict speech technologies under copyright law would be unconstitutional.