Constitutional attacks on copyright are a relatively recent development. Insitutionally, Peters’s office is not inclined to support such attacks; Peters is a named defendant in a number of challenges. Her office defends laws even when it didn’t want to see those laws enacted, arguing for deference to Congress.
In the past, courts looked to the Constitution mainly to analyze substantive copyright law related to copyrightability (e.g., what are “writings”?). Term extension spurred the development of constitutional challenges. Larry Lessig saw the opportunity to use the courts to overturn Congress’s poor judgment. So far such challenges are unsuccessful; the single success may be overturned any day (the anti-bootlegging statute).
On Eldred: There was very little opposition to the CTEA at the time, though Peter Jaszi and Dennis Karjala tried. Once it got passed, there was a lot more attention – the attacks seemed out of the blue. Lessig was nowhere during the legislative process. (Comment: I’m not really sure what I’m supposed to glean from this. It may have been bad politics to stay out and to not monitor proposed legislation for mischief, but am I supposed to think he and Eric Eldred forfeited their rights to complain?)
The bottom line on Eldred: courts should defer to Congress on how best to pursue the copyright clause’s objectives. What about the First Amendment challenge? First Amendment rights are accommodated through the idea/expression distinction and the vibrant fair use doctrine. Restricting my ability to copy your expression isn’t an undue burden on my speech; First Amendment concerns are weightiest when I want to make my own speeches. (So, you know, I’m not engaging in any particularly valuable activity now, reporting on Peters’s speech.)
Lessig snatched victory from the jaws of defeat by using the Court’s language on “traditional contours” of copyright protection. Brewster Kahle has now sued based on provisions of the renewal act of 1992, the Berne Convention Implementation Act, and the 1976 Act, harping on the idea that these laws removing formalities altered the traditional contours of law. Traditional copyright protection required affirmative steps to claim it, and most works didn’t, but now we have automatic/unconditional rights – this is, they argue, a radical departure justifying application of First Amendment standards.
Peters agrees that only 15% of works registered were renewed, but they all had that initial term of protection. The district court dismissed Kahle, rejecting the argument that these laws changed traditional contours, which it defined as the scope of copyright protection rather than formalities. Argument in the court of appeals is next month.
The remaining challenges are to the anti-bootlegging provisions of the law. The criminal statute provides no limited time – the recording industry argued that, if what you do is wrong at the beginning, it can never be right. (I guess they never heard of adverse possession.) The 11th Circuit upheld the criminal provision, even though it didn’t fit within the copyright clause (live performances aren’t “writings”), because it was okay under the commerce clause. In Martignon, a SDNY judge came to the opposite conclusion, focusing on the “limited times” issue. Congress can’t use the commerce clause to circumvent the limits on the copyright clause. That argument was in July 2005, so a decision may come soon.
The related civil anti-bootlegging provision was challenged in Kiss Catalog, but the Justice Department wasn’t informed of the constitutional challenge as it should have been. A new judge decided that the commerce clause allowed the law, but the litigation continues.
There is a very heavy burden on challenges to copyright. The government usually wins, and should. This is not about good policy, but about power. (Kind of like Season 7 on Buffy.) If you don’t like a law, go to Congress and argue.
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