An analysis of intellectual freedom and censorship in united states

Since American Indians are now taxed, they are counted for purposes of apportionment.

An analysis of intellectual freedom and censorship in united states

Too bad, the court will certainly say; a content-based preliminary injunction of speech would be a blatantly unconstitutional prior restraint. Likewise for preliminary injunctions against obscenity and other kinds of speech, despite the fact that such speech, if ultimately found to be unprotected at trial, could be criminally or civilly punished.

How can this be?

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Why, then, not to allegedly infringing speech? In Part I, we discuss the history of preliminary injunctions in copyright cases and the current law relating to such injunctions.

In Part IV, we discuss the implications of the collision between copyright law principles and free speech principles, and propose some changes that are needed to bring copyright law into line with constitutional commands.

We conclude that permanent injunctions in copyright cases should generally be constitutional, and the same should go for preliminary injunctions in cases that clearly involve literal copying, with no plausible claim of fair use or of copying mere idea rather than expression.

Other preliminary injunctions, though, should generally be unconstitutional. In Part V, we briefly explore these questions with regard to other kinds of intellectual property--trademarks, rights of publicity, trade secrets, and patents.

We conclude that the problem is not limited to copyright, and that at least in trademark and right of publicity cases, preliminary injunctions may sometimes run afoul of the First Amendment.

Finally, in Part VI we say a bit about the practical prospects for revising the law along the lines we suggest. Preliminary injunctions have been a feature of English copyright law since its inception.

The first modern English copyright act was the Statute of Anne in While the overlap between the two produced some disputes, it was well established that injunctive relief could be ordered by the Court of Chancery notwithstanding the existence of a legal remedy in damages.

The issuance of such injunctions in England appears to have been rather common in the early days of copyright, and the standard for their issuance rather lenient. Beckett, Lord De Grey concluded that of the seventeen copyright decisions between andseven appeared to be "injunctions granted ex parte, upon filing the bill, with an affidavit annexed.

But it is notable that English courts regularly issued preliminary injunctions in copyright cases in which "the defendant [was] not so much as heard. Indeed, in one case the Chancellor issued an injunction "till the hearing" at law on the basis of an expired copyright, on the grounds that the plaintiff might in addition be entitled to common law copyright protection.

Some courts characterized this as an effective presumption in favor of injunctive relief. A Court of Equity therefore acts, with a view to make the legal right effectual by preventing the publication altogether.

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Despite the fact that United States copyright law was based largely on the English model, 24 early U. Bender, 33 where the court refused to issue a preliminary injunction despite clear evidence of copying because the infringing work was not a "mere copy" and was unlikely to supersede the original.

An analysis of intellectual freedom and censorship in united states

Plaintiffs who had made a clear showing of infringement were sometimes denied injunctive relief if the defendant presented evidence that it could pay adequate damages after the completion of the suit.

Strange, discussed above, 40 where the same factual circumstance was held to support rather than oppose the granting of a preliminary injunction. At some point in the early part of this century, judicial hostility towards preliminary injunctions in copyright cases began to abate.

In his treatise on copyright law, Arthur Weil noted that "the modern tendency is to issue temporary injunctions more freely than in earlier times. The Modern Rule The Copyright Act of 43 authorizes courts to grant "temporary and final injunctions on such terms as [they] may deem reasonable to prevent or restrain infringement of a copyright.

If that can be demonstrated, a preliminary injunction is the expected remedy.

An analysis of intellectual freedom and censorship in united states

The Second and Ninth Circuits, the most important in copyright cases because together they house the New York publishing industry and acting community, Hollywood, and Silicon Valley, do not even require hardship to the defendant to be balanced at all if the plaintiff can show that it is likely to succeed on the merits of its claim.

Courts find it "virtually axiomatic that the public interest can only be served by upholding copyright protections," 63 and accordingly grant preliminary injunctions if the plaintiff has shown a likelihood of success on the merits.

A prima facie case of copyright infringement requires that the plaintiff prove that it owns a valid copyright and that the defendant has infringed the copyright by violating one of the exclusive rights enumerated in the Act.

Nonetheless, the practice in copyright cases seems to reverse the irreparable injury rule: In appropriate cases, plaintiffs can obtain temporary restraining orders ex parte in accordance with Rule 65 of the Federal Rules of Civil Procedure.

Such seizures are also often ex parte, a fact which has caused some writers--and the Federal Rules Advisory Committee--concern. Summary Several things are notable about the law of copyright preliminary injunctions.

First, the modern U. Copyright plaintiffs can dispense with most of the normal requirements for obtaining a preliminary injunction, and disputed issues are regularly resolved in their favor.

Second, in many cases it is the defendant, not the plaintiff, who effectively bears the burden of proof with respect to such injunctions. Bond practice reinforces this shift--it is the defendant who is presumed to be compensable by money damages if an injunction wrongly issues, while plaintiffs are conclusively presumed to suffer irreparable harm if an injunction does not issue.The Intellectual Freedom section of the State of America's Libraries Report provides an overview of top trends in censorship and intellectual freedom ov th past year including the list of “Top Ten Most Frequently Challenged Books” of Authors: Shane Simpson and Richard Potter [1].

A. Introduction. The law restricts the freedom of expression in different ways. The most obvious, are the laws against obscenity, defamation and more recently, discrimination. Internet censorship is the control or suppression of what can be accessed, published, or viewed on the Internet enacted by regulators, or on their own initiative.

Individuals and organizations may engage in self-censorship for moral, religious, or business reasons, to conform to societal norms, due to intimidation, or out of fear of legal or other .

Freedom to View Statement The FREEDOM TO VIEW, along with the freedom to speak, to hear, and to read, is protected by the First Amendment to the Constitution of the United States.

In a free society, there is no place for censorship of any medium of expression. Censorship by religion is a form of censorship where freedom of expression is controlled or limited using religious authority or on the basis of the teachings of the religion.

This form of censorship has a long history and is practiced in many societies and by many religions. Censorship During the late s and early s there were very few incidences of outright censorship in Nicaragua.

The IAPA confirmed that freedom of the press had improved dramatically since the days of the Somoza dictatorship and .

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