Court Agrees That Pulling Content Out Of The Public Domain May Violate The First Amendment
from the a-win-for-lessig dept
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.