Comments on: Kahle v. Gonzales II Blog, news, books Sat, 14 Oct 2017 12:41:00 +0000 hourly 1 By: Lewis Hyde Mon, 20 Nov 2006 12:41:16 +0000 One question about “traditional contours” that is not part of the Kahle brief, and was implicitly dismissed in Eldred, nonetheless seems to me worth keeping in mind. That is the distinction between a “limited” and a “perpetual” term.

We think that Madison wrote the copyright clause that speaks of “limited Times.” Madison also, as with everyone else in his day, thought of copyright as a monopoly privilege, and in a late essay (circa 1817) declared clearly that “Perpetual monopolies of every sort, are forbidden … by the genius of free Governments….”

The distinction mattered then and matters now. The puzzle is: where is the line between “limited” and “perpetual”?

Finessing that puzzle for the moment, suppose we knew where that line was and that a law were written that crossed it: at that point it seems to me that we could say that “Congress has … altered the traditional contours of copyright protection” and therefore First Amendment scrutiny is in order.

By: rodander Fri, 17 Nov 2006 12:18:10 +0000 I see your point, Prof. Thanks. (I don’t know whether I buy it, but I’ll ponder it.)

By: lessig Thu, 16 Nov 2006 23:40:15 +0000 Rodander:

But again, this is where Eldred is so good (really!): No one would say (or should say) all copyright violates free speech. It plainly doesn’t, as at least some copyright induces speech that otherwise wouldn’t be there. But no one should say that every copyright law doesn’t violate free speech. If Congress, e.g., eliminated fair use and the idea/expression dichotomy, at least there the gov’t would concede a line has been crossed.

So how do you know which copyright laws should be tested under the 1st Amendment? Eldred answers the question: the trigger is tradition. If a copyright law is within the “traditional contours of copyright protection,” it gets a 1st A free pass — 200+ years of history has earned it immunity from “further 1st A scrutiny.” But if a copyright law deviates from the “traditional contours of copyright protection,” then it should be tested under the 1st A, just as any law regulating speech would be tested under the 1st A.

You say you think Congress “could have” set up an opt-out system originally. But the point is the immunity comes from what they actually did. What they “could have” done hasn’t been tested by tradition.

By: rodander Thu, 16 Nov 2006 14:28:42 +0000 Thanks for the response, Prof. I understand that point.

If there were no Writings and Discoveries clause in Article I, then I can see that the mere granting of exclusive rights might be challenged under the 1st Amendment. But since there is such authorization, that seems to indicate that the granting of such exclusive rights in and of itself does not violate the 1st Amendment, because this would have rendered the Writings and Discoveries clause a nullity (and there is no history indicating that, I expect). So if such exclusive rights can exist without violating 1st Amend, it seems to me that the manner in which such rights attach generally doesn’t much matter, constitutionally.

Given this, it would appear that Congress could have constitutionally established an “opt-out” copyright system originally, rather than an “opt-in” system. So if the first Copyright Act could have constitutionally set up an “opt-out” system, then it is hard for me to accept that changing from an “opt-in” system to an “opt-out” system is unconstitutional.

But you’ve thought longer about this than I have, to be certain.

By: lessig Thu, 16 Nov 2006 09:39:01 +0000 rodander: Your question was asked by Chief Judge Schroeder and Justice O’Connor. True, the Constitution (1787) grants Congress the copyright power. But the First Amendment (1791) limits it. All laws by Congress that are found to have violated the 1st amendment are laws that were passed pursuant to some Congressional power.

3bm: Sure, all Free Speech challenges get raised in Courts because legislatures are not likely to be responsive to them. That’s indeed the purpose of a Free Speech right — to force the legislature to account for speech interests in contexts in which they are unlikely to.

By: three blind mice Thu, 16 Nov 2006 05:29:40 +0000 Aye, that’s the crux of the matter to me. With the opt-out system, there’s no complete registry of copyright ‘deeds’. How does one obey the law and avoid trespassing, when one can’t find the property lines?

whilst a valid concern, one can easily obey the law and avoid trespassing by simply creating new and original works of artistic expression. you do not have to reprint Skinny Puppy T-shirts (as cool as that might be), put The Golden Phoenix and Other French Canadian Fairy Tales on your website, or re-broadcast the “infamous Star Wars television special ran only once, never went to any sort of home video format and reputedly had the master copy destroyed by George Lucas himself.”

heh. great read indeed. it seems to us mice that most of the anecdotes of “stifled uses” illustrate just little impact the big bad copyright boogeyman has on the average person.

it seems the crux of the matter is, as r. alexison noted, “why this was a judicial rather than legislative issue“? the answer seems obvious: commons-ists cannot win the argument in the legislative debate.

By: Mike Wed, 15 Nov 2006 20:25:17 +0000 “as the burden is only realized with the emergence of the Net”

Perhaps it might be useful to differentiate between email and the web.

I think you could show some change in the way people communicate that now is burdened by opt-in (in that regard then I think the emergence of desktop publishing and the common place of digital “cut-and paste” might be more precise).

In the “old” days, when you wrote a letter and you wanted to include some other media like a news clipping or photo you included the physical piece of paper- so you had to buy multiple copies from the copy owner.

To use today’s medium of communication you NEED a digital copy- to make a copy you NEED the rights.

So whereas in the past if I wanted to send prof Lessig a copy of an old text- I would have to send him the physical text (and the right traveled with the text).

Now however the ONLY way I communicate with most people is electronically- so I need digital copies- so I need to obtain the copyright. Even if I just want to send one copy, I still need the rights. So it’s not a case where “I want to publish to millions of people on the net” but rather “I can’t do something I used to be able to do”

True the “old” method still exists, but there is certainly enough “digital divide” data to indicate where digital communications is now a necessity, and communications that rely on “hard copies” are severely disadvantaged.

By: jh Wed, 15 Nov 2006 19:08:43 +0000 hope Willem is well soon

By: rodander Tue, 14 Nov 2006 19:12:39 +0000 Regarding the First Amendment argument you raise, do you address the express authorization given in Article I for “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”?

It would seem to me that this Article I clause would argue against necessarily applying First Amendment tests to any and all copyright statutes, especially those in which Congress establishes the manner in which copyright vests. In other words, the Copyright Act is not like other statutes that may implicate the First Amendment. At best, it seems that this may raise competing explicit Constitutional provisions.

(But I’m not a copyright lawyer, so be gentle if I am missing something obvious.)

By: r alexison Tue, 14 Nov 2006 16:29:41 +0000 In my opinion the court seemed of course astute but somewhat at sea, which made the 10 minutes seem like insufficient time to clearly communicate the importance of case. They asked for background info which only arrived at the end. I’m not a lawyer nor highly versed on the case, so perhaps I missed some subtleties but I thought the questions were indicative of some grasping about what the issues were. There were common questions like why this was a judicial rather than legislative issue. A judge asked the plaintiffs to boil the issue down to one sentence, but then seemed still somewhat unclear at the end of the exchange. A judge asked the defense who was affected by the case and my memory is that he shrugged and said something like ‘the plaintiffs?’.

I really don’t understand why none of the stories, for instance about the photos, or the university libraries full of information that are inaccessible, and there are so many more examples, weren’t quickly aired. Perhaps this omission from both sides was due to time constraints, tradition arguing constitutional law, or strategy. In another venue someone in the audience would have surely raised their hand to offer an answer.

While, the issues can be simply boiled down in 10 minutes– opt in vs. opt out, a clear change in the contours of the law, etc., compared to other cases there didn’t seem to be real engagement between the judges and the lawyers around the real issues. This seemed like partly a time issue, partly an understanding issue. As well, compared to the plaintiffs, the defense seemed to be phoning it in — maybe his style, an affect, an off day, perhaps he truly thought it was a done deal, but the liveliness came only from the plaintiff side. Good work there though.

By: anon Tue, 14 Nov 2006 13:52:24 +0000 I’m rooting for you. Any guesses when a ruling might be reached?

“Were the property system we call “copyright” more efficient — if you could easily know who owned what”

Aye, that’s the crux of the matter to me. With the opt-out system, there’s no complete registry of copyright ‘deeds’. How does one obey the law and avoid trespassing, when one can’t find the property lines?

By: areader Tue, 14 Nov 2006 12:54:39 +0000 re: the number of blogs.

Technorati says it’s “Currently tracking 59.9 million blogs”.