October’s Yale Law Review has an interesting article by Jed Rubenfeld, entitled “The Freedom of Imagination: Copyright’s Constitutionality.” (Disclaimer: I’m not a lawyer and not a legal scholar, so I’m not fully qualified to judge the scholarly merit of the article. What you’re getting here is my semi-informed opinion.)

Rubenfeld argues, convincingly in my view, that standard claims about copyright and freedom of speech don’t stand up to scrutiny. He argues that copyright as now enforced places unconstitutional limits on free speech.

He goes on to explore how copyright can be made constitutional. This involves a detour to discuss the meaning of the First Amendment, followed by the laying of a new framework for copyright. He finds that copyright’s ban on literal copying is constitutional, but the rules regarding derivative works need to be adjusted.

Whether this ultimately is correct is beyond me, but I think the article is worth reading if you’re interested in these issues. I would like to hear the opinions of any readers who are lawyers.

[Link credit: Kitchen Cabinet]

Declan McCullagh at news.com reports that “Technology and entertainment lobbyists will sit down at the negotiating table [today] to seek a resolution to the long-running political spat over digital copyright.”

The article makes the alarming but unstated assumption that the last Congress’s refusal to pass any “anti-piracy” bills is actually a problem. When Congress rejects bad bills, that’s not an “impasse,” that’s democracy at work. We should all hope that Congress continues to reject any bad bills that are put before it.

It’s a classic error to assume that every social problem can best be solved by passing new laws. Copyright infringement is a difficult problem, but so far I haven’t seen any convincing argument that passing laws can do much to address it.

Clarification (added at 11:30 AM): Declan is one of the last people I would expect to make the “classic error” of assuming that all problems require government action. I suspect the hand of an editor at work here.