Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

from the fingers-crossed-that-they-get-this-right dept

We've been covering a very important copyright case -- Golan vs. Holder -- which involves a key question about copyright law. While the case may seem narrowly focused, it has much larger implications. As we've discussed, it's the third case in a trio of cases that involved Larry Lessig, concerning the ability of the US to retroactively change copyright law. The first two, Eldred and Kahle, both ended up in losses, but they did get the court to establish some boundaries for when and how the US could retroactively change copyright law. As a very quick review, Eldred argued that the ongoing extension of copyright violated the "limited" part of the copyright clause in the Constitution. The Supreme Court eventually said that this was Congress's call, and noted that it wouldn't review copyright extension on First Amendment grounds unless the change in the law went beyond the "traditional contours of copyright protection." Of course, many of us believe that an automatic copyright that lasts multiple lifetimes goes way beyond the traditional contours of copyright protection that kicked off with very limited protections, requiring registration and only lasting for a short period of time. But what do we know?

The second case, challenging the registration/automatic question, pointed out that under the Eldred ruling, the 1976 Copyright Act should be reviewed for First Amendment issues, since it certainly changed the traditional contours by switching copyright from "opt-in" to "opt-out." Actually, it didn't even switch it to opt-out, as there's really no way to officially opt-out of copyright coverage. That seems like a massive change to the traditional contours of copyright law. However, the appeals court got confused and simply assumed that what was being argued was the same issues in Eldred.

The third case is this case, the Golan case -- which noted that due to a treaty agreement, the US took some foreign books that had been in the public domain, and retroactively put them under copyright protection, putting some sellers of those books at risk for infringement. Two years ago, we were a bit surprised to find a court agreed, and said that this part of the Copyright Act was unconstitutional. Basically, the court suggested that Congress could have written the law in such a way that left those works in the public domain. Last summer, the 10th Circuit appeals court reversed the lower court, and basically said it was okay to take these works out of the public domain, and that there was no First Amendment issue in doing so, because copyright law "addresses a substantial or important governmental interest." For a variety of reasons, I found this reasoning to be quite problematic.

Golan appealed, and it was just announced that the Supreme Court will actually take the case and will review the First Amendment issue (along with the Progress Clause issue). While I wouldn't be surprised if the Court made a ruling that flies in the face of reason, as it did with Eldred, perhaps we can be hopeful that some on the court will finally recognize how the massive expansion of copyright over the last century really does raise serious First Amendment issues. This is an important case to follow, even if it seems likely that the Supreme Court will make another bad ruling. And, even though it may be a narrow issue, getting the Supreme Court to actually look at some of the issues when the First Amendment comes into conflict with copyright is still important.

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  1. icon
    Justin Levine (profile), 8 Mar 2011 @ 10:26am

    Re: Re: Re: Re: Re:

    Justine, if you created (and completed) the work while it was in the public domain, you would (a) end up with a copyright on your new work (the movie), and (b) would face no issues because you worked from public domain material. You are only bound by the law and the restictions at the time of your actions (creation) not in some future sense.

    Do you have any legal authority for this claim? I am honestly unfamiliar with any. The whole point is that I wouldn't be working from public domain material - it would be material that is/was given newly vested copyright protection.

    Let's say that instead of creating a derivative work, I made a straight digitally cloned copy of the original Metropolis while it was in the public domain. It is MY copy that I have lawfully made. Now Metropolis goes back into copyright and someone wants to make a copy of MY copy. Do you argue that since my copy was made during the public domain period that it is OK to copy from it? That would seem to defeat the purpose of putting it back into copyright. But if people don't have the right to copy my copy once Metropolis is put back into copyright, how can people suddenly have the right to make derivative works? The time frame becomes irrelevant here. It doesn't matter if the act of creation was made in the short public domain "window", and I know of no legal authority which suggests otherwise.

    What if I spent vast sums to start creating my derivative work on Metropolis, but only completed 95% of it by the time the original Metropolis was put back into copyright? I guess I'd just be out of luck then? How are we to determine at what date such derivative works are/were created since registration is not necessary?

    What if I take my newly created derivative work and immediately will them to the public domain? People should then be able to remake, remix and recreate the work - but under your scenario they wouldn't be able to, since it would still be violating the original Metropolis which now has been given newly vested copyright protections.

    It is easy to see the complete mess that would be created under the legal scheme you seem to support.

    The Amazon links you point are irrelevant. Nobody argues that the works are locked up - just that you have to pay for them when there should be alternative free avenues via the public domain (which directly affects one's free speech rights). It is the equivalent of saying a poll tax should be constitutional since it doesn't affect one's ability to vote - you just have to pay for the privilege. The Supreme Court has explicitly rejected that argument, as they should in this scenario as well.

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