stanford law prof lawrence lessig expounds on what the courts are thinking
The regulation of porn raises a question of free speech. Courts get that. So too does the regulation of copyright raise a question of free speech. But courts don’t yet see that. They don’t yet understand the ways in which this state sponsored monopoly over “who can say what” can, at times, interfere with the “freedom of speech.” They don’t see it because for 200 years, copyright law has functioned with little interference from the First Amendment. There have been a handful of cases raising extreme claims of conflict, but no clear case that yet addresses how courts are to evaluate the intersection of copyright law and the First Amendment.
incidentally, lessig just had a debate w/ mpaa moron jack valenti. summaries on /.