[ARSCLIST] Copyright ruling

[Marcos Sueiro <mls2137@xxxxxxxxxxxx>]

From LJ Academic Newswire, 9/11/07 issue:

> *Breakthrough? In Ruling, Court Acknowledges Changed "Contours" of
> Copyright *
>
> The 10th Circuit Court of Appeals last week remanded to District Court
> a copyright case that restored copyright protections to works that had
> previously passed into the public domain, ruling that the removal of
> works from the public domain represented a change to the "traditional
> contours of copyright protection." On his blog
> <http://www.lessig.org/blog/>, Stanford University professor Lawrence
> Lessig hailed the unanimous ruling as "a very big victory," and said
> that the ruling in /Golan v. Gonzales/
> <http://cyberlaw.stanford.edu/case/golan-v-gonzales> could set the
> stage for a Supreme Court review of another case, /Kahle v. Gonzales/,
> that holds major implications for orphan works and the public domain.
>
> /Golan v. Gonzales/ was filed in 2001 on behalf of Lawrence Golan,
> director of Orchestral Studies, conductor, and Professor of Conducting
> at the University of Denver's Lamont School of Music. Golan contended
> that a copyright provision of the Uruguay Round Agreements Act
> <http://www.copyright.gov/gatt.html> (URAA) removed many foreign works
> from the public domain and granted them "restored" copyrights, a move
> with significant First Amendment implications.
>
> The 10th Circuit agreed. Its ruling affirmed that removing works from
> the public domain was a departure from Congress' traditional role in
> copyright law and, as voiced in the 2003 /Eldred v. Ashcroft/
> <http://cyber.law.harvard.edu/eldredvreno/> Supreme Court case that
> challenged the Copyright Term Extension Act, changes by Congress to
> the "traditional contours" of copyright law warrant a First Amendment
> review.
>
> "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," explained Lessig.
> "But when it changes that tradition, its changes must be scrutinized
> under the First Amendment." Writing for the Court, Judge Robert Henry
> said that in passing the URAA, Congress "transformed the ordinary
> process of copyright protection and contravened a bedrock principle of
> copyright law that works in the public domain remain in the public
> domain."
>
> The Golan decision could now influence the Supreme Court to review
> /Kahle v. Gonzales/, a lawsuit brought by Brewster Kahle
> <http://www.libraryjournal.com/article/CA6466634.html?industryid=47175>
> and the Internet Archive. "I suspect [the recent 10th Circuit]
> decision will weigh heavily in the Supreme Court's determination
> whether to grant review in the Kahle case," Lessig suggested. "In
> Golan, the issue is a statute that removes work from the public
> domain….in /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
> First Amendment review as well."
>
> Among its challenges, /Kahle v. Gonzales/ addresses Congress's 1976
> copyright law that eliminated the need to register for copyright. That
> change, Kahle argues, has since created an entire class of "orphan
> works," works whose copyright owners are either unknown or
> unidentifiable, thus rendering the works unusable and thereby
> infringing free speech. Both the District Court and the 9th Circuit
> Court of Appeals, however, have rejected Kahle's arguments, leaving
> only the Supreme Court.
>

--
Marcos Sueiro Bal
Audio/Moving Image Project Archivist
Preservation Division
Columbia University Libraries