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Wednesday, September 05, 2007

Victory for First-amendment review of copyright law

Lawrence Lessig, A big victory: Golan v. Gonzales, Lessig blog, September 5, 2007.  Excerpt:

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the "traditional contours of copyright protection" described in Eldred as the trigger for First Amendment review extend beyond the two "traditional First Amendment safeguards" mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the "traditional contours of copyright protection." In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress's change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a "traditional contour of copyright protection." Under the 10th Circuit's rule, it should merit 1st Amendment review as well.

I suspect this decision will weigh heavily in the Supreme Court's determination whether to grant review in the Kahle case....

The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case....

Comment.  The OA connection is indirect but powerful.  This decision expands the range of First-Amendment scrutiny of copyright legislation.  In its wake, federal courts could overturn the Uruguay Round Agreements Act, which retroactively copyrighted material already in the public domain (i.e. committed piracy against the public domain), and could overturn the 30 year old opt-out system that copyrights tangible expressions by default, from birth, and eliminates the need for registration and renewal.  If it had either of these effects, then it would enlarge the public domain and thereby enlarge the set of works that could be made OA without further permission.