Supreme Court Not Ready To Take On The First Amendment Aspects Of Copyright Just Yet
from the be-patient,-Lessig dept
This post may be a little “inside baseball-ish” when it comes to copyright issues, but it’s worth noting what’s happening in some important lawsuits. While the Supreme Court has been gleefully taking on more and more cases concerning patent law, it seems that it’s not yet ready to revisit some important discussions around copyright law, since the Eldred case back in 2003. Late last year, we updated you on a few cases that have used the specific wording of the Eldred decision to argue that recent copyright law changes were violations of the First Amendment. In Eldred, the Supreme Court had ruled that it was only a First Amendment issue if changes in the law changed the “traditional contours of copyright protection.” It’s that clause that some other cases have been challenging lately. As we noted in that last post, there appeared to be a split among the different circuit courts concerning whether recent copyright changes did, in fact, change the traditional contours of copyright protection. That, it seemed, was actually a good thing, because different circuits with different readings is the sort of thing that attracts the Supreme Court’s interest.
Unfortunately, it appears that the Supreme Court just isn’t all that interested yet. Larry Lessig has the update, where he notes that the Supreme Court has refused to take the case so far, though part of its reasoning was that the government’s filing insisted that the one ruling that said the traditional contours had been changed was an obvious mistake that would be overturned when the 10th Circuit agreed to rehear the case. Except… the same day that the Supreme Court turned down the case, the lower court turned down the request to rehear the case. As Lessig notes, this is far from over, but it appears that the Supreme Court won’t be settling this matter any time soon, which is a bit unfortunate.