Eldred loss, CTEA win, part 1
Copyright extensions have won, Eldred has lost (see Copyfight). I'm reading the majority opinion now. I'm recalling my much earlier posting on Trying to think like a conservative Supreme Court justice on copyright I'll repeat that material here now, as it seems to have been prophetic:
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 copyright'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 January 15, 2003 01:13 PM
(Infothought permalink)
| Followups
