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When Copyright Collides With Free Speech

Stanford Law School professor Lawrence Lessig is claiming a big victory in Tuesday's decision from the 10th U.S. Circuit Court of Appeals, Golan v. Gonzales. But William Patry, Google's senior copyright counsel, calls the decision baffling and sees it headed towards Supreme Court review.

At issue was whether Congress could extend the terms of existing copyrights and reinstate copyright on works already in the public domain. Lessig's arguments in the case hinged on a morsel dropped by the Supreme Court in ruling against him in its 2003 decision Eldred v. Ashcroft. There, the court rejected a challenge to copyright term extension, but suggested that First Amendment review could be warranted if Congress has "altered the traditional contours of copyright protection." That is precisely what Congress did, Lessig argued, when it adopted the Uruguay Round Agreements and thereby reimposed copyright on works that had been in the public domain. Lessig sums up this week's ruling this way:

"This is a very big victory. The government had argued ... 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."

Patry, on the other hand, acknowledges that the ruling vindicates Lessig's approach but continues to believe it is an approach that makes no sense. He explains:

"I have mentioned a number of times in a number of places, my view that this argument makes no sense at all because a standard of review is not a substantive attack on legislation and because in this case once it was found that Congress had acted within its copyright powers, the jig was up. Moreover, as in Eldred, once it is admitted that one's First Amendment argument is based on one's copyright argument, and the copyright argument fails, presto should go the First Amendment argument."

The 10th Circuit sent the case back to the trial court to analyze the First Amendment issue. Whatever that  court decides, no doubt the case will make its way back up the channel of appellate review.

Posted by Robert J. Ambrogi on September 6, 2007 at 05:56 PM | Permalink | Comments (0)


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