Mere formalities

It's been a bit since I last posted, and I will blame the holidays and general busy-ness for my slow down in posting here. Some of my distraction from blogging is a result of getting to leave the crutches behind. I've characteristically packed my schedule with too many fun things to do. In a strange way, I now long for the weeks when I was less mobile and "forced" to lay low. (Is the grass really always greener?) Excuses aside, it's good to be back and writing and to have interesting things (at least to me) to think and write about...

I attended a talk by Larry Lessig today which discussed the district court's opinion dismissing CIS's Kahle v. Ashcroft case. (The opinion is available here.) While the opinion leaves much to be desired, I want to focus on a small but significant "winning" point that was raised in the talk. That "win" relates to what constitutes a "traditional contour" of copyright in first amendment analysis.In the Eldred case, the Supremes said that unless a "traditional contour" of copyright is altered, the Court will not subject a copyright law to first amendment scrutiny (requiring the Government to justify the law by identifying a legitimate government interest and showing that the law does not restrict more speech than is necessary). The Court went on to discuss briefly two "traditional contours": fair use and the idea-expression distinction. The question remained (for some) whether the Court meant for these two contours to be examples or whether they represented the entire set of traditional contours. I think the Eldred opinion is quite clear that fair use and idea-expression distinction are just examples, and not the complete set. And, fortunately, Judge Chesney came to the same conclusion in her Kahle opinion (at page 25 of a 26-page opinion).

Unfortunately, in the remaining 2 1/2 paragraphs of the opinion, the court's first amendment analysis heads in the wrong direction. The court draws an arbitrary line between substantive changes to the "scope of copyright protection" on the one hand, and the "procedural steps necessary to obtain and maintain a copyright" on the other. The former are "traditional contours" which, if altered, would receive first amendment scrutiny. The latter do not. Under this reasoning, the court easily concluded that the registration, renewal, deposit and notice requirements (which, had been with us in some form or another since the inception of US Copyright Law -- that is, since 1790!) are "traditional contours of copyright" and thus deserve no first amendment scrutiny. For anyone who studies copyright law, however, the change from a system which required these "mere formalities" (the court's word choice, not mine) in order to claim copyright at all, to a system in which they are entirely optional was perhaps the most dramatic change to copyright in this country that has ever taken place. The significance of the impact these formalities have had on speech is, I believe, deserving of scrutiny.

So, while the court got the first part right -- there ARE traditional contours beyond fair use and the idea expression distinction (I believe this is the first court to say that affirmatively) -- its reasoning as to what will fall in the "traditional contours" basket makes no sense to me. Plaintiffs are appealing the decision and the Ninth Circuit will be the next to hear these issues. It will not be long (at least in relative terms) before the Supreme Court will clarify what it had in mind in Eldred when it announced its "traditionalism" approach to copyright and first amendment disputes.