Empty Formalism in Golan and Eldred
One myth should be exploded about the Court’s analysis of the relationship between the Copyright Clause and the First Amendment. In both Eldred and Golan, Justice Ginsburg says that heightened scrutiny of copyright statutes on free speech grounds is not required because the “idea/expression” dichotomy and the “fair use” doctrine protect the First Amendment interest. As long as Congress does not disturb those “traditional contours” of copyright protection, there isn’t a constitutional problem.
The problem with that point is that the idea/expression dichotomy is almost never used to invalidate a copyright, and fair use is only rarely enforced. A functional (dare I say pragmatic?) approach would recognize this fact and conclude that these Potemkin safeguards are totally inadequate for the First Amendment interest at stake. Protecting the public domain from congressional poaching would be much more effective, but that just went by the boards.