Open Access News

News from the open access movement

Thursday, January 16, 2003

More on the Eldred decision....Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, criticizes the Supreme Court for its shoddy treatment of the First Amendment issues in Eldred. (Thanks to LawMeme.)

Excerpt: "Ginsburg argues that there is no conflict between free speech and copyright terms because the 'copyright scheme ... incorporates its own speech-protective purposes and safeguards.' She begins by noting that 'The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles.' This argument proves both too much and too little. It proves too much because the First Amendment was ratified at a time when lots of laws against libel, blasphemy, and indecency (judged by 1791 standards) were thought to be consistent with the First Amendment. Indeed, Congress passed the Alien and Sedition Acts only seven years later. If Ginsburg’s argument is correct, most of contemporary First Amendment law is wrong. The argument proves too little because the length of the copyright monopoly at the time of the Founding was much much shorter than it is today, and the modern doctrines that have expanded the scope of copyright protection did not exist in the 1790's. The fact that some degree of copyright monopoly was thought compatible with the First Amendment does not demonstrate that any degree of monopoly, no matter how large or extensive, would have been thought compatible."