Back in October, the Washington Metro Area Transit Authority implemented a shady bag-check policy in order to protect metro riders from terrorists. ("Shady" because the WMATA did its best to enact the policy without getting feedback from riders, and because the policy doubles as a way to boost drug confiscations). In response to the new policy, members of Flex Your Rights, a nonprofit that seeks to "teach people to understand, appreciate, and assert their constitutional rights during police encounters," gathered en masse outside the Dupont Circle Metro station near downtown D.C. and handed out fliers explaining that the bag checks are voluntary, and that riders who wish to avoid them should politely decline a search and leave the station.
According to Flex Your Rights' Scott Morgan, the WMATA was irked that Flex Your Rights used its logo on their fliers without permission, and promised to sue the group if it didn't destroy the remaining fliers and issue a public apology by Jan. 5. It's now Jan. 8, and Flex Your Rights has yet to say sorry:
The Washington Metro Area Transit Authority (WMATA) has threatened us with legal action due to our use of Metro's "M" logo on our informational flyer about refusing random searches. Metro alleges that our use of the logo on the widely-distributed flyer constitutes a violation of their registered servicemark and has promised legal action if we do not destroy all remaining flyers and issue an apology by January 5th.
The 5th has now passed, and we have no intention of complying with Metro’s ill-conceived intimidation tactics. We’re well aware that the 1st Amendment protects "fair use" of trademarked material for the purpose of criticism. The ACLU of the National Capital Area has agreed to represent us in the event that Metro files a lawsuit. Our attorney Art Spitzer contacted Metro in a letter today, urging that the legal threats against us be promptly withdrawn to avoid an inevitable loss in court.
It's good to see Flex Your Rights stand up to the WMATA over the use of the logo, but I would like to point out that fair use isn't protected by the First Amendment.
UPDATE: After a heated (but well-meaning) email exchange, FYR's Scott Morgan directed me to an article entitled "The Interdependency of Fair Use and the First Amendment," which effecively explains the connections between the 1976 Copyright Act and the First Amendment. Here's a rather lengthy, but fascinating excerpt:
The first amendment balances an individual's right to free speech against the needs of society; the copyright clause, at base, balances an individual's right to control his or her work against society's need for access; however, the focus within most copyright conflicts is between one individual's economic claim in copyright against another's economic claim to use. The result is a common legal view of copyright as a grant of property to a creator against a claim to property by a user. The actual policy upon which the copyright clause is based and which supports public access, fades from discussion altogether.
To understand the commonalities in the goals of the policies behind the free speech grant and the copyright clause would lead to characterization of the copyright statute as regulatory rather than proprietory in nature, and would eliminate a claim of conflict between the copyright clause and the constitutional intent of the first amendment.
Other possible resolutions to this conflict reside in two aspects of the copyright law: 1) the law restricts access to the expression of an idea but not to the idea itself, and 2) application of fair use. But the idea/expression dichotomy fails to protect public access to information. Particularly with the ubiquity of digitized information, the access that would be allowed to ideas is limited. Digitized communication often merges the form of expression of the idea with the idea itself, so that the idea cannot be extracted from its protected form. The copyright law was developed at a time when technology had not yet advanced to a level at which it was common for ideas and expressions to become so intermingled that public access is hindered. We can no longer rely on the idea/expression dichotomy established by the copyright law to ensure the advancement of learning and knowledge creation. Fair use, then, becomes of utmost importance for protecting the public's right to information when the idea/expression dichotomy ceases to function as an assurance of protection for first amendment values.
Some legal scholars argue that a first amendment exception should be applied when the idea/ expression dichotomy fails to support the policies that ensure public access to information; but the first amendment exception is neither established law nor is it often applied by adjudicators. Fair use, then, is the only assurance of access to the information that forms the basis of free speech.
See below for a short, safe-for-work video documenting Flex Your Rights' activities at the Dupont Circle Metro (shot and edited by yours truly):