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March 17, 2011
Copyright vs Free Speech at SCOTUS
David Post at Volokh Conspiracy writes about the US Supreme Court's decision to grant cert to Golan v. Holder, appealed up from the 10th Circuit. This case is interesting for Copyfight on several fronts, as it touches on issues of copyright, copyright extension (and retroactivity), and freedom of speech.
The case, with representation from Stanford's Center for Internet and Society, challenges a series of re-protections of works that were previously in the public domain, on the basis that such re-establishment of protection violates the First Amendment free speech rights.
The legal issue here is twofold: 1. What, if any, degree of First Amendment scrutiny is valid? One argument is that Eldred v. Ashcroft says that no First Amendment scrutiny is required - that all copyright extensions can pass muster without scrutiny. That, I think, is almost certainly wrong. The other side's argument is that any move that takes works out of the public domain is a speech restriction and thus subject to F.A. review.
That leads to the more interesting question: 2. What level of First Amendment scrutiny is to be applied, and do acts that place works back under copyright once they've gone into the public domain pass that level of scrutiny? This is a harder question to decide - I think we can all agree that changing the world such that you are no longer free, for example, to perform a particular work of art, is an impingement. If it's an impingement carried out by the Federal Government then I think it's pretty much a given that the First Amendment has to be taken into account. But even First Amendment guarantees are not absolute - there are a raft of exceptions carved out in various case laws.
Post writes, and I agree, that the present SCOTUS is unlikely to decide that placing public domain works back under copyright - whether by term extension or by international treaty as in this case - is sufficiently onerous as to rise to the level of prohibited restriction. But if they do agree that some level of First Amendment review is warranted that would be a small but important step forward. In particular, if Congress... I suppose I should say "when Congress" next decides to extend copyright terms, it would give us additional grounds on which to challenge such extensions
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