Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain
We’ve been talking about the Golan case, and its possible impact on culture, for years. If you’re unfamiliar with it, it’s the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law… but today, on the day of the big SOPA/PIPA protests… that’s exactly what happened (pdf). The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it’s okay — and that the “fair use” and the “idea/expression” dichotomy remain — all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there’s nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment… by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well. First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there’s little fight between copyright and the First Amendment because the two things were put in place at about the same time. That’s a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It’s only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of “copyrighted” material all the time — things have changed an entirely. It’s hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed… but that’s exactly what it does. Stunningly, the majority decision here, written by...
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