Copyright decision paves way for Mickey Mouse Act challenge?
By Robert Nagle
Perhaps Mickey shouldn’t be smiling.
Remember the copyright-related mischief in Washington, D.C., that kept The Great Gatsby and many great works from making it into the public domain for now? Corporations such as Walt Disney lobbied for the Sonny Bono Copyright Extension Act, popularly known as the Mickey Mouse Act—intended to protect the rodent, among other Disney properties.
Last week, however, Lawrence Lessig at Stanford University Law School reported that a unanimous 10th Circuit Court decision about copyright extensions might reopen another legal challenge to the law.
“In a unanimous vote, the Court held (PDF) that the ‘traditional contours of copyright protection’ described in Eldred as the trigger for First Amendment review extend beyond the two ‘traditional First Amendment safeguards’ mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (’URAA’) under the First Amendment, which removed material from the public domain.”
Opt-in vs. opt-out copyright system: New legal climate
Lessig continues: “In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, 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 1st Amendment review as well.
“I suspect this decision will weigh heavily in the Supreme Court’s determination whether to grant review in the Kahle case (PDF).”
See an earlier background report on the Kahle case and the most recent information.
Less cheer from Google’s William Patry
Meanwhile William Patry, senior copyright counsel at Google, provides a less sanguine opinion about the recent decision:
“But, Eldred did state that First Amendment scrutiny might be appropriate if copyright legislation ‘altered the traditional contours of copyright protection,’ 537 U.S. at 221, and that’s how the Tenth Circuit spent the remaining 21 pages of its opinion. Of course, one might lose even if the contours were believed to have been altered, and that’s what the remand is about.
“The Tenth Circuit took the issue head on by examining what it thought the traditional contours of copyright are: one of them is that like Las Vegas, what goes into the pd stays in the pd (Teleread’s emphasis). GATT therefore altered that traditional contour, the court held, in an historical review of prior copyright statutes. That seems an odd approach: the first time Congress imposed compulsory licensing, in the 1909 Act, it was certainly altering the traditional contours of copyright, and Nathan Burkhan argued, violating an alleged limitation of granting only ‘exclusive’ rights. More to the point, there have been prior retroactive pulling out of works from the pd, as in the wartime cases. How many of these are needed to make a minhag (tradition)?”
A minhag (I just now learned) is a Hebrew word for a long-held custom.
Related: Court Agrees That Pulling Content Out Of The Public Domain May Violate The First Amendment, in Techdirt.
September 11th, 2007 at 6:50 am
Of course, _Eldred_, the case cited by the 10th circuit, was the very case that upheld the “Mickey Mouse” extension in the first place. I’ve never heard of a case where someone was able to get the Supreme Court to overturn a prior decision on the basis of that same decision.
Mind you, overturning the URAA in itself, one possible outcome of the 10th circuit decision if it’s upheld, would in itself re-establish or clarify the public domain status of a lot of work. Which I’d consider a good thing.