tag:blogger.com,1999:blog-12505562.post2165798675183344685..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Golan's Copyright LowsWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-12505562.post-81219955897874605522007-09-17T15:48:00.000-04:002007-09-17T15:48:00.000-04:00The 10th Circuit's decision in Golan seems to supp...The 10th Circuit's decision in Golan seems to support a finding that the federal Antibootlegging Legislation likewise alters the traditional contours of copyright by its removal of unfixed live musical expression from the public domain - on the front end - by not allowing the public unfettered use of this unfixed expression until it is fixed and Congress has authority to limit its use under the Copyright Clause. Dastar is being cited as support for a federal right to copy public domain material/expression which would include unfixed works not yet subject to congressional regulation. I think Golan may be helpful to Martignan as the 2nd Circuit reviews the affect of the First Amendment on remand.mazhttps://www.blogger.com/profile/10330209939990190299noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-65974327586127935012007-09-06T22:49:00.000-04:002007-09-06T22:49:00.000-04:00Not just because of the word but because of the fa...Not just because of the word but because of the fact that it is placed after the former into an integrated document(of sorts). "How specifically" I would leave up to the massive First Amendment jurisprudence and the hundreds of academics and others that revel it its implications and supposed intricacies. (Copyright is actually more interesting and challenging conceptually, I think.) I doubt there is a good First Amendment argument. It is overly simplistic to equate free speech with "free" content or even free access to content. But the approach to separate the issues under the two provisions seems sensible nonetheless. Congress in the exercise of one positive power can run afoul of a proscriptive clause in the same Constitution.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-72999966499881670702007-09-06T19:47:00.000-04:002007-09-06T19:47:00.000-04:00Anonymous: just because it uses the word "amendmen...Anonymous: just because it uses the word "amendment?" And if so, how specifically?William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-42771254490922915292007-09-06T19:32:00.000-04:002007-09-06T19:32:00.000-04:00Doesn't the 1st Amendment amend the Article 1 Sect...Doesn't the 1st Amendment amend the Article 1 Section 8 exercise of Congressional power?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-31720244632633376162007-09-06T18:19:00.000-04:002007-09-06T18:19:00.000-04:00Hi Dean. I am suggesting that once the court concl...Hi Dean. I am suggesting that once the court concluded the act was within Congress's power, that was the end of the inquiry.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-15351712956711779912007-09-06T18:16:00.000-04:002007-09-06T18:16:00.000-04:00At a glance, I'm not impressed with the opinion, e...At a glance, I'm not impressed with the opinion, either, but I genuinely don't understand the complaint that it is "analytically backwards" in some significant way. Granted, considerations of standard of review logically precede those of substance, but the challenges founded on the Copyright Clause are distinct from the First Amendment challenge. Are you suggesting the court should have remanded without deciding the copyright questions? In order to avoid reaching multiple, perhaps superfluous constitutional matters?Dean C. Rowanhttps://www.blogger.com/profile/11846388304210211279noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-53831094801273736732007-09-05T10:42:00.000-04:002007-09-05T10:42:00.000-04:00On first reading, I find two disturbing aspects of...On first reading, I find two disturbing aspects of this opinion. First, it quotes Nation Enterprises (slip op. at 7, 17) for its "engine of free expression" language without ever grappling with the closely linked language concerning the Congressional balancing act between the First Amendment and copyright limits... even when quoting from and citing to Eldred.<BR/><BR/>Second, and more disturbing, it quotes a number of Second Circuit opinions for propositions that have since been explicitly or implicitly overruled, either by new case law or changes in the statutes.<BR/><BR/>Overall, this is not an impressive opinion. There is certainly something to its fundamental argument — that there is a First Amendment issue involving removal of works from the public domain that must be resolved — but it does an inelegant and inadequate job of supporting that argument in this context. I also find it quite troubling that the opinion never grapples with the treaty obligation v. First Amendment issue, which is a much closer call than the legislation v. First Amendment issue... especially since, regardless of whether it is "right," there is some extremely strong precedent in environmental law making clear that a treaty can come much closer to implicating a constitutional right than can legislation.CEPhttps://www.blogger.com/profile/06970221836704655630noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-13862174846940169292007-09-05T06:28:00.000-04:002007-09-05T06:28:00.000-04:00Either:1) 'public domain' means 'all published wor...Either:<BR/><BR/>1) 'public domain' means 'all published works', and copyright is fundamentally an incentive to the author to publish, to place their works into this public domain. It is material only to the author as to the duration of its protection.<BR/><BR/>or<BR/>2) 'Public domain' means those works specifically exempt from copyright, especially those for which the term of copyright's protection has expired. Copyright being a quid pro quo of limited monopoly in exchange for full public 'ownership' thereafter.<BR/><BR/>It would be good at least to establish a definition of the 'public domain' and whether it actually exists.<BR/><BR/>And then we can move on to actually recognising whether the public are at all impacted by copyright's duration.<BR/><BR/>Then one day, we might even question whether the public are adversely impacted by copyright's very existence.<BR/><BR/>One day soon perhaps...Crosbie Fitchhttps://www.blogger.com/profile/06554471152790988479noreply@blogger.com