October 09, 2002

Trying to think like a conservative Supreme Court justice on copyright

Well, everybody's talking Eldred. So I might as well do it too.

As the saying goes, prediction is difficult, especially about the future. Here's my worries about the Eldred case:

There's something interesting in the logic the Supreme Court uses in copyright vs. the First Amendment, e.g. where in the past they've claimed in the Harper & Row case:

In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.

It doesn't sound as if they're going to be amenable to First Amendment arguments, stirring as those may be.

The Court can duck the issue of "limited times" becoming finite-yet-unbounded, by saying the issue isn't absurd yet. If they have to face it again, in another twenty years, when (likely, not if) copyright terms are extended another twenty years, then that's someone else's problem.

There's an avenue for the court to slap down the copyright changes as exceeding Congress's power. But the famous recent time they did this, the Lopez case, that was about guns, a topic which stirs a certain passion in many conservatives, which copyright cannot match.

I've basically been trying to think like a conservative Supreme Court justice, and not found reason for optimism.

By Seth Finkelstein | posted in copyblight | on October 09, 2002 05:50 PM (Infothought permalink)

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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