Supreme Court Not Ready To Take On The First Amendment Aspects Of Copyright Just Yet

from the be-patient,-Lessig dept

Wed, Jan 9th 2008 7:17pm — Mike Masnick

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.

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Filed Under: copyright, eldred, golan, kahle, lessig, supreme court, traditional contours

18 Comments

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Supreme, 9 Jan 2008 @ 9:05pm

Court
Why do we need those supreme jokers anyway?
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erock, 10 Jan 2008 @ 1:08am

1st amendment
The first amendment has nothing to do with copyright law you idiots. I just read it. It has to do with freedom of religion, speech, press and redressing the government for grievances. NOTHING to do with copyrights (even the constitution isn't copyrighted, duh). Get it right before you publish it. The constitution is not some ambiguous statement that you can make whatever laws you want. It is strict in what it has to say. Is that hard to understand? If so check yourself into an English speech clinic due to the fact you are unable to understand English as it is written or spoken. Do not argue with me you are stubborn. All you think about is material things and you have no perception of the universe as it exists due to your stubbornness to learn new scientific TRUTHS.
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Rose M. Welch, 10 Jan 2008 @ 1:30am

Did you take your meds today, Erock?
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Mike (profile), 10 Jan 2008 @ 2:34am

Re: 1st amendment
The first amendment has nothing to do with copyright law you idiots

You might try reading the actual details before you attack. It absolutely does have something to do with copyrights -- if copyrights are used to prevent freedom of speech.

I just read it. It has to do with freedom of religion, speech, press and redressing the government for grievances. NOTHING to do with copyrights

Yes, it's that "freedom of speech" part. If copyright is used to prevent that freedom of speech, it becomes a 1st amendment issue. That's what's being argued in court.

Get it right before you publish it.

We did. You did not. If you click through on the links in the post these details are all there for you to read.

The constitution is not some ambiguous statement that you can make whatever laws you want.

Nor is anyone saying that it is.

Is that hard to understand?

Not to us.
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Kevin, 10 Jan 2008 @ 4:39am

Re: Court
Why do we need those supreme jokers anyway?

To keep the clowns in Congress and the White House in check. Duh.
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Anonymous Coward, 10 Jan 2008 @ 6:42am

Re: Re: 1st amendment
Mike what? The 1st amendment does not allow anyone to break the law. Just like it does not cover profanity and slander. Your consistent misuse and misunderstanding of the Constitution and Copyright law are really dishearting, and really off topic when you consider you are suppose to be a tech based blog.
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Jason Still, 10 Jan 2008 @ 8:27am

Re: Re: Re: 1st amendment
I don't see where he implies that the 1st amendment allows anyone to break the law. I do see where he says that the 1st amendment can be used as a tool in the fight for copyright reform when copyrights are being used to deny people their first amendment rights. For instance, if I wanted to write about watching the super bowl, I should have the right to do so, but the NFL increasingly wants to claim ownership over things like the words "super bowl" thus infringing on my first amendment rights.
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Anonymous Coward, 10 Jan 2008 @ 8:56am

Re: Re: Re: Re: 1st amendment
If you infringe on someone's copyright you have broken the law. It is really simple. You analogy shows your lack of knowledge like Mike about copyright issues.
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Mike (profile), 10 Jan 2008 @ 10:24am

Re: Re: Re: 1st amendment
Mike what? The 1st amendment does not allow anyone to break the law.

Nor did I say that it does. I'm not sure what gives you that idea.

Your consistent misuse and misunderstanding of the Constitution and Copyright law are really dishearting

Could you point out my misuse or misunderstanding of the constitution?

and really off topic when you consider you are suppose to be a tech based blog.

I love it when others tell me what's on or off topic for my site. The nice thing is that I get to decide.
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Mike (profile), 10 Jan 2008 @ 10:24am

Re: Re: Re: Re: Re: 1st amendment
If you infringe on someone's copyright you have broken the law. It is really simple.

I'm not sure what that has to do with the issues at hand. No one had said otherwise.
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Jason Still, 10 Jan 2008 @ 10:47am

Re: Re: Re: Re: Re: 1st amendment
If you infringe on someone's copyright you have broken the law. It is really simple. You analogy shows your lack of knowledge like Mike about copyright issues.

Let's say I'm a sports writer for a newspaper. Its the day after the super bowl and I write an article about it, in which I (quite properly) refer to it as "the Super Bowl". The NFL then sues claiming copyright/trademark/patent/etc infringement (unless, of course, we fork over a very large "licensing fee"). Do you not see how such a thing is stifling free speech?

A better example...let's say you're an investigative reporter who's dug up some documents showing the dirty dealings and unethical behaviors of a major corporation. They catch wind of it, but before you can publish your book/article/whatever they claim copyright on all the documents. They then send you a cease and desist letter to keep your findings from being published and ALSO claim copyright on the letter, trying to keep you from even letting anyone know that they're stifling your free speech (or at least, keep you from offering anyone any proof of it).

Can you not see the problem here?
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Anonymous Coward, 10 Jan 2008 @ 10:59am

Re: Re: Re: Re: 1st amendment
Well if you changed the name of your site then maybe they wouldn't tell that so often, but then again you still think you are relevant in an industry that has continuously told you otherwise and thus that is why you are busy writing your anti-coporation ego fulled ramblings. Also if somehow you expect me to pour over your poorly written posts in search of all of your poor arguments and proof of evidence citing your own posts as fact.
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Anonymous Coward, 10 Jan 2008 @ 11:03am

Re: Re: Re: Re: Re: 1st amendment
...then you best be advised I have better things to do with my mind then convince a narcissistic morom of his ignorance.
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Mike (profile), 10 Jan 2008 @ 11:27am

Re: Re: Re: Re: Re: 1st amendment
your anti-coporation ego fulled ramblings

Which am I? Yesterday people were calling me a big corporate lackey, and today I'm told I'm anti-corporation.

The fact is, I'm neither. I'm pro-innovation.

However, if I'm so anti-corporation, can you explain why I spend so much time giving companies explanations for how they can make more money?

you still think you are relevant in an industry that has continuously told you otherwise

What gives you that idea? The industry has repeatedly said the opposite -- that what I'm saying is directly relevant, which is why we're seeing more and more people in the industry following the path we laid out years ago.
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Mike (profile), 10 Jan 2008 @ 12:15pm

Re: Re: Re: Re: Re: Re: 1st amendment
...then you best be advised I have better things to do with my mind then convince a narcissistic morom of his ignorance.

I'm still trying to figure out where the ignorance is. From the cases listed above, this is clearly a First Amendment issue. That's the key point in all the cases. Do you deny that this is what the Supreme Court was discussing or that any of these lower courts were discussing?
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Anonymous Coward, 10 Jan 2008 @ 5:29pm

Mike, are you just answering those two to bait them?

'Cause it's pretty funny.
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Anonymous Coward, 10 Jan 2008 @ 7:25pm

Mike - thanks for clarifying what was going on here. I read Lessig's blog post about the issue, and couldn't figure out what was what. Your pre-digestion of the issue makes sense to me.
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Shun, 10 Jan 2008 @ 9:26pm

Re-hearing?
So, the question is, will the Supreme Court bother to re-hear this case, now that the 10th Circuit decided to duck, or will the SC duck?

I wouldn't expect the current Supreme Court to be pro-people or whatever. Since the Bush appointments, their decisions have come pretty much out of the Federalist Society textbook.

A curious question: if a text is never published, in the traditional sense, but is leaked, like the "corporate papers" above, is it protected by copyright law? There may be "trade secret" infringements, but I don't see how something like that could be covered by copyright if it were clearly not intended for publication.

Current copyright law seems to go against the intent of the Constitution. From the Con:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

It seems like the current copyright regime is not doing its job. The Constitution does not say that these rights are transferable to a third party. It is exclusive to Authors and Inventors. I don't see how a bunch of middle-men like the RIAA get into it. If the Constitution is to be strictly followed, then the RIAA must be seen as an illegal racket.

Even without the First Amendment, we can see that there are problems here. Another curiosity: if the Constitution establishes the Copyright Clause, why doesn't it take a Constitutional Amendment to change it? How can copyright be extended by statute?
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