... it appearing that arguably the only significant injury in fact of which appellant Schnapper has complained was the alleged denial to him of commercial publication rights to the script ..., and it further appearing ... that the appellees ... would consider granting such rights, ... or had no control over them, and that counsel for all parties would promptly confer in order to explore the question of the possible availability to appellant of such rights.
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States ...
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
The bill deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright .... However, there are almost certainly many other cases where the denial of copyright protection would be unfair or *109 **66 would hamper the production and publication of important works.
Could the U.S. Government thus claim a copyright in a work by this indirect method which it would be precluded from claiming if the work were in the first instance made in a for hire relationship? It seems unlikely that the courts would permit such a subterfuge.
... to refer to publications commissioned or printed at the cost and direction of the United States. These would be authorized *110 **67 expositions on matters of governmental interest by governmental authority.
Congress has authority to make any law that is ‘necessary and proper’ for the execution of its enumerated Article I powers, ... including its copyright power, and the courts (sic) role in judging whether Congress has exceeded its Article I powers is limited. The courts will not find that Congress has exceeded its power so long as the means adopted by Congress for achieving a constitutional end are ‘appropriate’ and ‘plainly adapted’ to achieving that end. McCulloch v. Maryland .... It is by the lenient standard of McCulloch that we must judge whether Congress has exceeded its constitutional powers in enacting an all-inclusive copyright statute.
Copyright ... rests on the assumption that there are forms of expression, limited in kind, to be sure, which should not be divulged to the public without the consent of their author. The purpose, far from being restrictive, is to encourage and protect intellectual labor .... The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.
(T)he tradition of the First Amendment, and important decisions related to this tradition, define a scope for the Amendment that is not instrumental, not designed to shape the political process, and not a policy of efficiency in democratic self-governance. Against a historical perspective of religious and political autonomy required access assumes a more questionable theoretical posture.
(C)opyright cases have no pertinence here; the Government is not asserting an interest in the particular form of words chosen in the documents, but is seeking to suppress the ideas expressed therein. And the copyright laws, of course, protect only the form of expression and not the ideas expressed.
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