September 5, 2007  ·  Lessig

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. It also nicely demonstrates the wisdom in this part of the Eldred decision (don’t get me started on the Progress Clause part of the decision…) The rule of Eldred, as interpreted by the 10th Circuit (and by us) is that Congress gets a presumption of First Amendment constitutionality when it legislates consistent with its tradition. But when it changes that tradition, its changes must be scrutinized under the First Amendment. This is an interesting constitutional argument — echoing some of Justice Scalia’s jurisprudence, as we argue in the cert petition. And it also makes a great deal of sense: practices unchanged for 200 years are less likely to raise First Amendment problems (but see …); but whether or not immunity is justified for them, it is certainly not justified for practices that deviate from Congress’ tradition.

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.

Thanks to everyone on our team that made this possible. First the clients — Lawrence Golan, the Richard Kapp Estate, S.A. Publishing, Symphony of the Canyons, Ron Hall and John McDonough (all of whom use and build upon material in the public domain; all of whom were negatively affected by Congress’s removal of material from the public domain). But also and especially to the gaggle of fantastic lawyers who supported us in the case — the Denver firm of Wheeler, Trigg, Kennedy, and Stanford CIS lawyers Chris Sprigman, Ed Lee, Jennifer Granick, David Olson, David Levine, Colette Vogel, Elizabeth Rader and Lauren Gelman (Tony Falzone came on afterwards).

  • http://www.jrconsumer.com RV

    A very big victory indeed!

  • http://joi.ito.com/ Joi Ito

    w00t! Congratulations!

  • aj

    I’m glad that there was some useful language that came out of Eldred. Congratulations, and thanks for making it difficult for them to get the sugar cube back from our tea.

  • Steve Johnson

    Congratulations on the victory and keep up the good work!

  • anon

    Congratulations. Can someone give a short summary of what works are now available once again in the public domain thanks to this ruling?

  • http://www.millsworks.net/blog Robbo

    Congratulations! Let’s hope this frees up the use of PD material and creates some momentum for similar pending decisions.

  • lessig

    No work re-enters the public domain yet. We need to go back to the district court and test the statute under the First Amendment.

  • http://www.machinimafordummes.com Hugh “Nomad” Hancock

    Fantastic! Great news, and great work.

  • http://sethf.com/ Seth Finkelstein

    Yes, Congratulations! Wins are the sustenance of activism.

  • http://magicdragon.com Jonathan Vos Post

    Congratulations! I’d followed Eldred carefully on your blog, elsewhere in the blogosphere.

    I just forwarded this to some attorneys I know who are less blog-addicted than I, and some de facto copyright experts (such as Dr. Thomas McDonough, scientist and science fiction author). Also, to my son, whom at age eighteen (18) is a full-time Law School student at USC, fiercely interested in IP and computers (his double B.S. is in Computer Science and Mathematics, having started university at age thirteen).

    O Brave New World!

    – Professor Jonathan Vos Post
    co-webmaster
    http://magicdragon.com
    Over 15,000,000 hits per year in its 12th year

  • http://blog.veni.com Veni Markovski

    Congratulations, Larry!! That’s a small step for you, but a giant leap for the court system in the USA!

  • JS

    Does this story relate to William J. Beggs from Bloomington, Indiana, law firm of Bunger & Robertson? Apparently Mr. Beggs bungled a civil case involving Jan P. Szatkowski and Seth Patinkin, leading to several ethical violations and accusations of participation in a criminal conspiracy to deprive Patinkin (and possibly other Jewish landowners) of the fruits of his rental business. Patinkin is a protege of Nobel prize winner John Nash and was named to the “30 under 30″ list of Indiana University last year.

  • http://poderigiacomo.netsons.org/blog/ poderi

    Hi!

    Congrats for the victory! And thanks for explaining it to us (me)

    Best wishes for further challenges!
    gp

  • http://www.schneier.com/blog Bruce Schneier

    Congratulations!

  • jay

    Congratulations! Meanwhile I see the lobbyists trying to chip away at fair use over on the CNET news site:
    http://news.com.com/Fair+use+is+not+a+consumer+right/2010-1030_3-6205977.html?tag=nefd.top

  • maiden

    Thank you for taking the time and effort to pursue such important issues of public domain/ public trust. I know many people such as myself who all agree that the system is like a giant overlord that swats at the life of human freedoms. Yet, we must continue to battle against the unrelenting pressures of totalinarianism that must be fought in any age until we reach the united front which will ultimately overturn its injustices in every form. What we do today is making a critical impact on the future for our children. Oppression must be fought whatever the cost to our personal time or lesuire, for freedom is priceless, but it is not free. Keep up the good work.

  • http://moderndragons.blogspot.com/ Mike Johnson

    Congratulations, and thank you.

  • lucychili

    Ah yay!
    I hope this is the first step of some really sensible structural thinking about how to value creativity in a collaborative era. Gluck

  • http://www.robfalklaw.com Rob Falk

    This is a nice victory. Congratulations.

    But what of this case on remand? It would seem that the review will be on the content-neutral narrowly tailored/significant governmental interest standard.

    Isn’t the statute narrow, affecting only copyrighted foreign works in public domain in US, and isn’t conforming our IP laws to the rest of the world a significant governmental interest?

    I don’t like the result of § 514, but I wonder if this decision really changes anything.

    Rob

  • Jim Carlile

    There was an interesting discussion on the Volokh blog that suggested that the 10th’s argument is based on a logical fallacy. It revolved around the the idea that if First-Amendment review is necessary because the “contours” have changed, it’s a false conclusion based upon ‘denying the antecedent.’

    In other words, the cited language in Eldred does not support a review, and it’s fallacious to say it does.

    That can sound like an awfully compelling argument against the decision, but it can be successfully addressed.

    If the cited language were a simple logical proposition, then the logical conclusion that ‘If nP then nQ’ would clearly be a fallacy, as noted.

    But it’s not. Instead, it’s a badly phrased statement that is clearly saying: ‘If a law does alter the traditional contours of copyright protection, then further scrutiny is necessary.’ It’s at least implying that, and the Court needs to either clarify this contention, or dismiss it outright. Otherwise the statement is meaningless.

    Whether they will do so or not is the question. My prediction is that they are going to run from it, because with this court and society, ‘property’ trumps everything else. Or they will claim that altering “contours” only means something grave, like abolishing fair use.

    Instead of being sloppy, perhaps the author of this statement knew it was a logical trick, and placed it into the language deliberately, in order to thwart further action? These Clerks aren’t dumb.

  • http://credit-auto-loan.bravehost.com/map.html Kudry

    “There was an interesting discussion on the Volokh blog that suggested that the 10th’s argument is based on a logical fallacy. It revolved around the the idea that if First-Amendment review is necessary because the “contours” have changed, it’s a false conclusion based upon ‘denying the antecedent.’

    In other words, the cited language in Eldred does not support a review, and it’s fallacious to say it does.

    That can sound like an awfully compelling argument against the decision, but it can be successfully addressed.

    If the cited language were a simple logical proposition, then the logical conclusion that ‘If nP then nQ’ would clearly be a fallacy, as noted.

    But it’s not. Instead, it’s a badly phrased statement that is clearly saying: ‘If a law does alter the traditional contours of copyright protection, then further scrutiny is necessary.’ It’s at least implying that, and the Court needs to either clarify this contention, or dismiss it outright. Otherwise the statement is meaningless.

    Whether they will do so or not is the question. My prediction is that they are going to run from it, because with this court and society, ‘property’ trumps everything else. Or they will claim that altering “contours” only means something grave, like abolishing fair use.

    Instead of being sloppy, perhaps the author of this statement knew it was a logical trick, and placed it into the language deliberately, in order to thwart further action? These Clerks aren’t dumb. “

    +1
    Awesome! Great work! Congratulations!

  • http://wordpress.pocosin.com Counsel

    If it is legal to “share” my CD with a friend, why is it not legal to “share” my content in a digital format–especially if I bought it in a digital format (iTunes, etc.)?

    The “old-school” definition of “share” might be that the “owner” of the license no longer had use of the content while it was being “shared.” This is doable with technology.

    However, is that what is required?

    I might have made a digital copy of my CD. If that digital copy of the CD’s content is on my iPhone, can I share the CD? IF I can, I see no reason why I can’t share the “digital” file.

    Would the Court look, at all, to whether someone posts content (digital media–song, movie, etc.) “on” the Internet that can be freely-downloaded any differently than content that I retain control over its “sharing?”

    If I can legally share my CD that I purchased, and my friend likes the songs but just listens to them while her brother copies the CD and posts it on-line, I am not guilty of a crime while my friend’s brother may be guilty.

    In the same light, I can share my digital file to a friend (controlling its release rather than allowing free downloads). Nobody can control what the person with whom I have shared the content (or their brother) will do with the content. If they break the law and distribute it without a license, they may be guilty of the crime, but am I?

    The issue, contrary to Matt Oppenheim, is not what the media the content is stored on but what rights I have to the content itself.

    Or am I way off base?

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