A Case That Might Have Interested Me More Once

The team behind Golan v. Holder (previously referred to, at least a few times as a “Son of Eldred,” like Kahle v. Ashcroft) is now petitioning for cert at the Supreme Court.

If you ain’t familiar, the last time the Republicans took the House, they passed the Copyright Term Extension Act, aka the Sonny Bono Act, granting another 20 years of copyright, without debate, on the eve of the impeachment proceedings.

Long story short. Ahem. Eldred lost, the plaintiff may have relocated to Shanghai, Larry Lessig changed his focus to corruption, and I think James Boyle’s still at Duke. There were a couple of interesting portions of the Eldred decision that offered hope, however slight, that some aspect of the rent-seeking we’ve seen in copyright might be rolled back, on 1st Amendment Issues.

Golan, filed 2001, wasn’t about Congress’s right to extend copyright to “infinity -1 day,” but rather about the Uruguay Round of GAAT, which took certain works that had been public domain in 1993, and placed them back under copyright.

The materials affected by GATT were mostly films and so forth (from Japan and other places) which, by the vagaries of copyright law, were public domain in the U.S. upon first pressing, and were in many cases sold by folks here–small video shops and the like. Obviously, the real beneficiaries of this were Hollywood, which saw their products, that might have been public domain in Europe or South America, suddenly copyright-protected in those markets, just as DVD was catching on.

GATT was nowhere near as arduous as the CTEA. If you’d been selling DVDs of early Anime or whatever, continuously, you had three years to keep doing so (as a “Reliance Party”), and the rights-holder had to send a “Notification of Intent to Enforce,” and other things. The number of actual NIEs sent was quite small… in this country. But, at least some things that were freely circulated as public domain* in the U.S. were removed, a few years prior to the launch of the Internet Archive, which really succeeds with its music and video downloads (books… not so much.)

Anyway, Cert’s been filed, the Supremes’ll let us know if they accept in four months, and arguments might be heard in a year.

*It gets a little stranger. There’s a long history of “famous” books and films, maybe music too, that were technically PD in the States, but deals were made with the authors/directors, etc. If you were a big enough player, that is. If you were a small player, ehh, even if you did the paperwork, you might still be screwed, same as now.

About dmoynihan

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