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On the continuing question of © and the First Amendment

Some important news in the continuing struggle to reckon the First Amendment and copyright. For those not following this in depth, here’s the story so far:
In Eldred v. Ashcroft, the Court was asked to subject a copyright statute to First Amendment analysis. The Court declined that request. Instead, the Court held that so long as copyright act does not change the “traditional contours of copyright protection,” further First Amendment review is not required.
That standard left open the question of what the “traditional contours of copyright protection” were. In three follow on cases, lower courts have now addressed the question. In all three of these lower court cases, the government has argued that by “traditional contours of copyright protection,” the Eldred court meant simply the “idea/expression” dichotomy and “fair use.” Thus, the only possible First Amendment challenge to a copyright statute, according to the government, is if the statute changes one of these two “traditional First Amendment safeguards,” as the Court in Eldred referred to them.
Plaintiffs in these three lower court cases have taken a broader view of the meaning of “traditional contours of copyright protection.” Rather than limited to the two “First Amendment safeguards,” plaintiffs have argued that “traditional contours” means, well, traditional contours. That if plaintiffs allege a change in the “traditional contours of copyright protection” implicating First Amendment interests, that change should be subject to First Amendment review.
In two of these lower court opinions, one in the Ninth Circuit (Kahle v. Mukasey) and one in a district court in the DC Circuit (Luck’s Music v. Ashcroft), the courts have agreed with the government. In one of these lower court opinions, (Golan v. Mukasey), the 10th Circuit agreed with the plaintiffs.
This split was the focus of a cert petition (Petition, Reply, Supplemental Brief) to the Supreme Court in Kahle. The government responded (response) that there was no need for Supreme Court to review Kahle, because the “mistaken” decision by the 10th Circuit would be reversed when the Court of Appeals granted the government’s motion to rehear the case en banc.
On Friday, the 10th Circuit denied the government’s motion. But on Friday, the Supreme Court accepted the government’s recommendation not to recognize the split, by denying cert. Thus, though the reason the government offered for not granting cert turned out to be false, cert has not been granted.
There’s no chance the government will allow the 10th Circuit’s decision to stand unreviewed. But while the 10th Circuit opinion is fantastically well done, it is unfortunate, in my view, that the Court did not take the opportunity to resolve the split in the context of Kahle. The issues in that case are clearer; they provide a better context within which to review the meaning of the Eldred rule — indeed, they make the wisdom of the Eldred rule seem obvious.
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we now return you to your regularly scheduled program which is already in progress

0.jpgWillem is a month old today. It has been an extraordinary month. I apologize for the absence, and am astonished by the kindness in the comments to my last post. Thank you.

But it’s time to restart this space.

Judge Stanley Birch provides the perfect incentive. Howard Bashman has a wonderful interview with Judge Birch, in the course of which he offers “With all respect, Eldred was wrongly decided.”

Thank you, Judge. It’s nice to be back. Continue reading

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the day in DC

It was a great day in DC.

Public Knowledge had arranged the meetings, with members and their staff from both sides of Congress, and both sides of the isle. We met with the staffs of Senators Cantwell, McCain and Leahy, then met with Congressman Cannon and Boucher. And — at her request — we met with Congresswoman Bono.

It was a strongly positive meeting with everyone, though of course Congresswoman Bono started most skeptically. By the end, however, she demonstrated a genuine openness to the issue, and a willingness to consider the proposal. It is of course very easy to demonize the otherside. But after listening to her talk about both this and the Sonny Bono Act, her motivations seemed quite genuinely to be about securing to artists continued reward from creativity. Not a bad motivation, all things considered, if we can balance it with protection of the public domain.

Others began closer to where we were, and so we ended even closer to where we wanted them to be. Congressman Boucher agreed to join as a sponsor — so at least three good souls in DC.

The best part, of course, was Congresswoman Lofgren’s press conference, announcing the bill that she and Congressman Doolittle will introduce, and explaining the reasons. She gets it, and she is powerful and right in her explanation. We owe her a great deal.

Indeed, I had that thought about everyone we met today. This was a strange day of feeling Congress sometimes somehow might work. It’s very early, and we have yet to weather the criticism and opposition. And of course, if money lines on this one, we will not prevail. But every, from Members to staff, took this as seriously as anyone could hope. Let’s see what happens.

One point was clear however: The work of the petition was extremely important. At least one Member indicated to me that he/she had been made aware of this issue by someone signing the petition. Another member indicated they had heard from people who had signed the petition. The more of this we can build, the more likely it is that we can build enough support to prevail.

Stay tuned for the next stages. But thanks to Public Knowledge, and the 15k+, who have helped carry this idea one step closer to reality. Continue reading

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very good news

I have just arrived in DC, where I was planning on meeting with staffers on the Hill tomorrow to drum up support for the Public Domain Enhancement Act. We’ve got CD’s of all 15k+ of the signatures on our Reclaim the Public Domain petition to hand out. It was going to be a fun day (as fun as any DC day gets) in DC.

But we’ve now learned that Congresswoman Lofgren (D-CA) and Congressman Doolittle (R-CA) have agreed to introduce the bill into Congress. We’re having an event at 1pm tomorrow at the Capitol to announce this first step on a long road to Reclaiming the Public Domain.

Count this as great news, and spread the word: there are two great souls on Capitol Hill. I’ll see if I can find some more. Continue reading

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a gift from the public domain

John Laurence Poole runs Editions Poole. Editions Poole publishes piano ensemble “repertoire, specializing in transcriptions and eight hand piano music.” As a 4th of July gift, Poole is giving away a free arrangement of the Star Spangled Banner composed by John Stafford Smith and arranged by Leopold Godowsky. In return, he is asking people to help free more music by signing the petition to Reclaim the Public Domain. See his offer posted to here.

Thanks, John! Continue reading

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firstmonday on eldred

Matthew Rimmer has a careful and insightful piece about Eldred v. Ashcroft. He has some good criticism of the Eldred Act.

Or at least, in the best of all possible worlds it would be good criticism. He says we need more radical reform. He worries about the burden on creators. True, the registration system was broken — because a government agency ran it. That needs to be fixed if any rebirth of registration is to do any good.

But the point about the need for something more radical bothers me. Sure, absolutely, we need something more. But how are we going to get there? There is no substantial push by ordinary people for the public domain. (Of course, there are 13,000 extraordinary people who get this, but only when you multiply them by 1,000 will we have a movement.)

Why don’t ordinary people get it? Because few understand why the public domain is valuable. Why don’t more see why the public domain is valuable? Because today the public domain is over 75 years old. It is ancient history for us, irrelevant to much of ordinary culture.

If the public domain were as young as it was for most of our history (30 years old, max), then losing it would mean something to most people. If the work of the 1960s and 1970s could easily be built upon, then taking that work away would excite a revolution. But the (brilliant) strategy of the copyright extremists has been to slowly remove the public domain, by slowing extending copyright. (Remember Hal in 2001, as Dave turns off his brain?) They have succeeded in making it irrelevant to most. The question now is how to make it relevant again.

In my view, reclaiming it would make it relevant. Exploding the content within the public domain in a context where it can be built upon and spread (ie, now, with the internet) will make people see again why the public domain is important. And if they see that, then they will again defend it.

It is this first step that the Eldred Act would achieve. The revival of a registration requirement would move content into a public domain quickly. (You can see the point with this Cabinet Magazine graphic.) And only then might we expect a public to demand more.

There are many who have written brilliantly about what is right in this context. Rimmer’s piece is an addition to that. But the hard problem is how to make the right real. That is what this movement needs now. Continue reading

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cutting libraries while killing the commons

Commons-blog has a nice link to a story about Milwaukee libraries being defunded. Yet at the same time, extensions of copyright terms simply increase the cost of getting access to content. If every librarian signed our Reclaim the Public Domain Petition, then perhaps we could rebuild a public domain that could make the costs of libraries fall. Continue reading

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a picture of the public domain

Cabinet Magazine has a great graf that shows the stagnation of the public domain, as well as an interactive version showing the same. If the numbers are right, then this battle to restore (in effect) a renewal requirement is the most important battle to reclaim the public domain that we could wage. Continue reading

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directors and actors for the public domain

We have posted another letter written to members of Congress from directors and actors about the threat that endless copyright terms creates for our culture. As the letter argues, most of the film from the 1920s and 1930s is not commercially exploited, which means most of the film from the 1920s and 1930s sits unpreserved and rotting away. But because of copyright regulations, it is effectively impossible to restore this film until the copyright expires. And when weill that be exactly?

Meanwhile, we’re approaching 12,000 signatures, which is great great news. Please help spread the news. Continue reading

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insanely cool — 10,000

So we’ve hit 10,000. This is extraordinarily great news. Thank you to everyone. Continue reading

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