Posted 6:52 PM by Robert

UPDATE: The Big Kill

Both Balkin and Siva Vaidhyanathan have constructive preliminary thoughts as to how Eldred might be used to gnaw at some of the more problematic new extensions of copyright protection - especially taking aim at the Digital Millennium Copyright Act.

As Vaidhyanathan says: Ginsburg's expression of faith in the power of the idea/expression dichotomy and fair use does not recognize that both these rights are under attack in Congress and lower courts right now. I think that's not quite right - since those attacks were not shown to be effected through the Bono Act under challenge in Eldred. But as I note in my prior post, proper cases can and should be found in which the idea/expression dichotomy has been at least arguably transgressed by expansion of copyright protection, and in which "fair use" is restricted. Balkin is right to focus on such expansions in his earlier post - although I do not agree that any serious First Amendment impact was shown to be created by the mere extension of the copyright term effected by the Bono Act itself, especially at the extreme level of generality at which the Bono Act opponents chose to argue and position the case (starting with the selection of plaintiffs - since it seems that the lawyers selected the plaintiffs in this case). The new economics of intellectual property should also be brought to bear, but carefully - certainly without inviting the courts to incorporate academic artifice or extraneous economic theories into the Constitution as was so unwisely attempted in Eldred.. The First Amendment - not the Copyright Clause - should be the focus of the challenge, as both Vaidhyanathan and Balkin also note.

I am not convinced that the DMCA is the right place to start. Balkin certainly goes too far by suggesting that Justice Ginsburg's opinion renders that Act "constitutionally suspect." At most Eldred's approach does not insulate the DMCA as much as it does the Bono Act - but that is far from rendering the DMCA "suspect." But the general approach seems sound.