For the first time, a federal court has held a copyright statute unconstitutional as violating the free speech provisions of the First Amendment.  In Golan v. Holder, 2009 U.S. Dist. LEXIS 28263 (April 3, 2009) on remand from the Tenth Circuit, the district court denied the government’s motion for summary judgment and granting the plaintiffs’ motion for summary judgment.  The United States District Court for the District of Colorado held that section 514 of the Uruguay Round Agreements Act (17 U.S.C. § 104A), is unconstitutional.  (Note: I represented a group of amici supporting the constitutionality of the statute, so my views are far from neutral.  These are entirely my views, not necessarily theirs.)

How did this case get to this point?  In (very) broad strokes, the Supreme Court upheld the copyright term extension act against two constitutional challenges.  The first, heavily distilled, was essentially that “copyright protection lasts too long.”  The court rejected that argument.  The second was that overly long copyright terms squashed the plaintiffs’ first amendment rights.  The Court rejected that argument as well, but in a more nuanced fashion.  It found that term extension raised no First Amendment issues due to the copyright law’s free speech safeguards, but warned that if Congress changed copyright’s “traditional contours,” more searching review would be appropriate.  The “traditional contours of copyright” language had never before appeared in a reported case.

The scope of these “traditional contours” formed the basis for challenging restoration.  Section 104A of the copyright act restores copyright to certain works by foreign authors that had fallen into the public domain for a failure to comply with the formalities that used to exist under United States law (such as affixing a proper © on publication.  Users that had relied on the public domain status of the work had a 1-year selloff period to get rid of any restored work once they received notice of intent to enforce.  A group of plaintiffs (represented by many of the same academics that challenged term extension), charged that Congress both lacked the power to take works out of the public domain and that the removal of such works violated the First Amendment.  Initially, the district court rejected both claims, but then the case went back to the Tenth Circuit.More...

There is an old story about Judge Fergusson (d.1827), a Scottish judge who did not like the sentence his colleagues had handed down in a homicide case.  It turns out that a young man had killed a drinking companion.  After waxing rhetorical on the friendly bonds formed during the excessive consumption of alcohol, the judge dissented on the lenient sentence given on the basis that “We are told that there was no malice, and that the prisoner must have been in liquor. … Good god my laards, if he will do this when he’s drunk, what will he not do when he’s sober?” 

But I had the exact same reaction to the business plan initially proposed by bopaboo.com. I am suggesting, however, that there would be some serious questions about legally, how such a site can continue to operate (or operate at all) without incurring massive liability.  After the initial press reports came out (such as this one, this one, or this one), the owners scrubbed the web site and took it into “private beta” testing.  Prior to its scrubbing, however, you could upload mp3 inventory into your “store” by merely signing up for an account. I wondered exactly what kind of activity the site’s founders thought was illegal.

Bopapoo’s now-hypothetical business model works like this: users upload their mp3’s of copyrighted recordings to their own individual “stores.”  These are offered on the assumption that the seller no longer “wants” these recordings, and is free to dispose of them by selling them once.  Bopaboo then takes a cut of the sales price.  It’s the same thing, according to the company, as selling a used book. More...