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.

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

Court Agrees That Pulling Content Out Of The Public Domain May Violate The First Amendment

from the a-win-for-lessig dept

This one comes as a bit of a surprise. The third in Larry Lessig's triumvirate of copyright cases may present his first serious court victory on these issues (and it potentially could come back to help the second case as well). A little history first. A few years back, Larry Lessig took a copyright case to the Supreme Court. The so-called Eldred case challenged recent changes to copyright law by Congress, stating that the repeated extensions to the length of copyright violated the Constitution, which guaranteed that copyright should only last a "limited" time. The Supreme Court disagreed with Lessig and Eldred, saying that Congress was within its Constitutional right in extending copyright. However, the case opened up some potential arguments to be discussed in later cases -- and Lessig has taken full advantage of that. The key point that the court made was that Congress' actions can be scrutinized under the First Amendment when it changes the "traditional contours of copyright protection." The court didn't think that simply extending copyright changed the contours of copyright protection -- but it did set some of the parameters for getting the courts to review changes to copyright law.

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.

Filed Under: copyright, eldred, first amendment, golan, kahle, larry lessig, public domain