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.

Filed Under: copyright, golan, public domain, supreme court


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  1. identicon
    DogBreath, 8 Mar 2011 @ 1:07pm

    Re: Re: Re:

    So, the legality of Section 1 Article 8 allows Congress to pass a law allowing copyright extension to: [Life + One Billion Years]" because that would fall under the "Letter of the Law" and not be considered a "perpetual copyright", since it is clearly defined to exist only for "limited times" and also covers the special "addresses a substantial or important governmental interest" phrase that the Supreme Court so seems to love and adore.

    By that same logic, I see no mention of a restriction on the type of arms a person may bear in the 2nd Amendment, so tactical suitcase nukes should be fine for everyone to own. What? The government has placed sane and logical restrictions on the ownership of nuclear weapons by private citizens you say? What in the Constitution gave them the right to do so? Could it be their attempt at using the original intent of the law to outweigh the letter of the law? How draconian of them!

    Nothing has changed. It is the same as it always was and forever will be, and whether those in power use the letter of the law to push it into one direction or the intent of the law to push it the other way (while simultaneously paving the road to hell with their alleged "good intentions"), "the law" means what any current government wants it to mean, and nothing else.


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