Court Agrees That Pulling Content Out Of The Public Domain May Violate The First Amendment

from the a-win-for-lessig dept

This one comes as a bit of a surprise. The third in Larry Lessig’s triumvirate of copyright cases may present his first serious court victory on these issues (and it potentially could come back to help the second case as well). A little history first. A few years back, Larry Lessig took a copyright case to the Supreme Court. The so-called Eldred case challenged recent changes to copyright law by Congress, stating that the repeated extensions to the length of copyright violated the Constitution, which guaranteed that copyright should only last a “limited” time. The Supreme Court disagreed with Lessig and Eldred, saying that Congress was within its Constitutional right in extending copyright. However, the case opened up some potential arguments to be discussed in later cases — and Lessig has taken full advantage of that. The key point that the court made was that Congress’ actions can be scrutinized under the First Amendment when it changes the “traditional contours of copyright protection.” The court didn’t think that simply extending copyright changed the contours of copyright protection — but it did set some of the parameters for getting the courts to review changes to copyright law.

In fact, Lessig used that ruling in the next case, the Kahle case, arguing that the changes Congress made back in 1976, switching copyright from an “opt-in” system to an “opt-out” system clearly changed the traditional contours — which seems like a reasonable argument. However, the 9th Circuit Court of Appeals unfortunately seemed to think that Lessig was simply re-arguing the Eldred case and couldn’t tell the difference even though the Kahle case was about changes to the nature of copyright law, and the Eldred case was simply about extending copyrights. The Kahle case is being appealed to the Supreme Court. Of course, the Supreme Court tends to like to take cases where two lower courts have seemingly disagreed with each other — and a new ruling in a different case involving Lessig may have just created that type of disagreement — which could hopefully make the Supreme Court pay attention.

The third case, the Golan case, questions a separate change to copyright law, where a US trade agreement forced foreign works that had been in the public domain back under copyright. Once again, the argument was that, based on the Eldred ruling, this change altered the traditional contours of copyright protection — and therefore should be reviewed under the First Amendment. To the surprise of many folks (me included), the 10th Circuit Court of Appeals has agreed and sent the case back to the district court to determine if this change really did violate the First Amendment (though, it should be noted that the court disagreed with Golan/Lessig on a variety of other points). Lessig is quite hopeful that the supposed disagreement between the 9th and 10th Circuit will cause the Supreme Court to take notice and review this area of copyright law. Lessig, obviously, is quite excited about this — though, if you want a more tempered opinion, it’s worth reading copyright expert William Patry’s take on the decision, which he seems to find somewhat baffling for a variety of reasons, both in the court’s reasoning and the reasoning behind Lessig’s position. Either way, this is a big victory for Lessig, and while it may seem a fairly minor nitpick into the nature of copyright law, it could represent a tiny, but important, door-opening crack in preventing Congress from further eroding the rights of individuals when it comes to how they can use content.

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Comments on “Court Agrees That Pulling Content Out Of The Public Domain May Violate The First Amendment”

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Anonymous Coward says:

Theft by Govt. Proxy

One can create a copyrighted work that incorporates public domain stuff. Even this comment contains many public domain elements, such as the words it uses. OK, I understand that. But then one day that public domain stuff is declared no longer public domain and suddenly my copyrighted work becomes infringing and I can no longer distribute it. The rights to my work are then taken away from me and given to whomever the rights to the public domain stuff were given. That seems unfair, and if you believe in the concept of “intellectual property” then it seems like “property theft” too. Kind of like a patent torpedo, only worse. Yea, Supreme Court, looking out for the special interests.

Crosbie Fitch (profile) says:

What is the public domain?


1) ‘public domain’ means ‘all published works’, and copyright is fundamentally an incentive to the author to publish, to place their works into this public domain. It is material only to the author as to the duration of its protection.

2) ‘Public domain’ means those works specifically exempt from copyright, especially those for which the term of copyright’s protection has expired. Copyright being a quid pro quo of limited monopoly in exchange for full public ‘ownership’ thereafter.

It would be good at least to establish a definition of the ‘public domain’ and whether it actually exists.

And then we can move on to actually recognising whether the public are at all impacted by copyright’s duration.

Then one day, we might even question whether the public are adversely impacted by copyright’s very existence.

One day soon perhaps…

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