Speaking of Awful Copyright Policy

Today the Supreme Court issued its opinion in Golan v. Holder, and it’s terrible.  The result can be justified, but the opinion is way, way too broad in its statements about the public domain.  The Court says that this case is analogous to Eldred when it is not, and ignores the English copyright history that formed the backdrop of the Copyright Clause.  Apparently, that Clause should now be read to say that as long as the idea/expression dichotomy and fair use are retained, Congress can grant a copyright to anything so long as it has a rational basis for concluding that this would have a positive effect on some creators or distributors.

Justice Breyer and Justice Alito deserve praise for this dissenting from this mess.  Justice Ginsburg–not so much.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

8 Responses

  1. Orin Kerr says:

    Gerard: “The Court says that this case is analogous to Eldred when it is not[.]”

    Can you explain this a bit? No two cases are directly alike, of course, but surely there are a lot of similarities between the two cases. The Court could have choen to read Eldred narrowly, but I don’t think its decision not to do that is necessarily “terrible.”

  2. Gerard Magliocca says:

    I think there’s a major difference between removing works from the public domain and extending the term of protection for items that are copyrighted. The former involves stronger expectations of free access than the latter, and in the absence of compulsory licensing the former can cut off access totally. Now if you want to make a narrow exception for the Berne Convention, I can see a path for doing that, but the Court went way beyond that.

  3. TJ says:

    I agree that this is a terrible outcome; but I don’t agree that this is all that distinguishable from Eldred. Yes, the Court in Golan used broad language. So did Eldred. What part of Eldred, exactly, gave you hope that the “stronger expectations of free access” would make any difference?

    Put it this way, when Congress goes the next step and does the repetitive retroactive extension as a favor to an influential donor (or just outright restores an expired copyright), I’m sure we’ll hear arguments that, well, the case is oh-so-distinguishable from Golan, and we can always say that the facts are more extreme. But, as you are acknowledging now, the message being sent by the broad language is pretty unmistakable, so at least until the composition of the court changes we are stuck with unlimited copyright. I thought the same thing with Eldred.

  4. Joe says:

    “composition of the court changes” … since things are about the same now (Alito being the joker here taking Stevens slot), 7-2, this will take a long time.

    I wonder what a Douglas or Brennan would think of this sort of thing.

  5. Brett Bellmore says:

    The composition of the court isn’t going to change in this regard until decades after the composition of the Presidency and Senate change. IOW, maybe some time during my toddler’s middle age.

    I think maybe an amendment, repealing the copyright clause, is in order. Put it on the to do list for a constitutional convention.

  6. Shag from Brookline says:

    Can Congress set the copyright protection term as, e.g., one day short of infinity? Or might the Court read between the lines of the copyright clause as providing a reasonable term? Congress has extended the term over the years and now with modern day technological advances, particularly the Internet, protection seems forever, with the benefit of the Court. My bigger concern is that crappy content benefits as much as good content. But maybe, just maybe, the Court’s copyright decisions will help provide full employment to the legal profession. How about “no fault” copyright laws that seem to work with “no fault” auto injury claims.

    But Brett’s idea of repealing the copyright clause would throw out the baby with the bath water. While the composition of the Court may not change for a long time, Congress does.

  7. Brett Bellmore says:

    Copyright isn’t a baby. It’s an artifical creation, a license to violate a basic civil liberty, justified on the basis that it will create more good than it does harm.

    Is that supposition up for reevaluation, or isn’t it? It is my opinion that IP rights have been expanded hugely beyond the point of diminishing returns. Maybe so far beyond that point that they’re causing more harm than benefit, on net.

  8. Shag from Brookline says:

    Brett, as a simpletonian originalist, ignores the gestation that led to the Constitution’s original copyright provision, treating it as artificial insemination by the Framers, with his view that there is a basic civil liberty to copy or assume the literary works of others. This makes me wonder, who’s moving Brett’s lips as he posts such comments? We’ve had over two hundred years of copyright laws that seem to have worked well until special interests got Congress in recent years to expand what originally started as short protective terms to much extended terms. I can accept that the Constitution’s original slavery provisions (without specifically referring to slavery) violated a basic civil liberty that took a violent Civil War to eliminate, but Brett’s ascribing copyright as ” … a license to violate a basic civil liberty, … ” is a bit over the top, even for him, with his apparent IP freely basic civil liberty.