Coming amid the nationwide celebration of the 200th anniversary of the Bill of Rights, U.S. District Judge Kevin Duffy's decision in the Biz Markie copyright infringement case ("Judge Raps Practice of 'Sampling,' " Dec. 18) serves as a sobering--and much-needed--reminder that the First Amendment is not absolute in its meaning or protections. Nor would the music industry wish it to be.
Interpreted literally, the First Amendment's guarantee that "Congress shall make no law . . . abridging the freedom of speech, or of the press" would overturn not only the obscenity laws the music industry routinely denounces, but also the copyright laws it strenuously defends. "Unauthorized copying, reproduction, hiring, lending, public performance and broadcasting prohibited," reads the notice on one of my cassettes. If that is not a statement of prior restraint, I am not sure what is.
Without such restraints, recording artists and record companies would have a difficult time realizing material gain from their work. As a result, the music industry as we know it today would collapse. We would all be poorer for its loss. Duffy's ruling affirms that society has a responsibility to protect the property rights of its members and ensure the viability of the recording industry, even at the risk of restraining some expression.