No. Or only to the pundits who don't read before they write. Eldred v. Ashcroft involved a challenge to the constitutionality of the Copyright Term Extension Act (CTEA), which extended the term of both existing and future copyrights by 20 years. In 2003, the Supreme Court rejected these challenges. Eldred focused narrowly on the constitutionality of the CTEA's extension of the term of subsisting copyrights; the Court held that these extensions did not violate the First Amendment or the Progress Clause. Eldred did not deal at all with the constitutional implications of the shift from conditional to unconditional copyright.
4. Is Eldred relevant to this new case?
Interestingly, the Court in Eldred did say something that supports the claims plaintiffs are making in this new case. The Court held in Eldred that changes to the copyright laws that do not alter the traditional contours of copyright protection are unlikely to burden speech in a way that might offend the First Amendment. By implication, when Congress does alter the traditional contours of copyright protection - as it has by shifting copyright from a conditional to an unconditional system - the changes to the law should be subject to heightened scrutiny under the First Amendment to determine whether they impermissibly burden speech. For reasons explained in detail in the complaint, the shift from conditional to unconditional copyright creates significant burdens on speech that cannot withstand First Amendment scrutiny.
5. You're talking about the removal of copyright "formalities" like registration and renewal. That seems like such a minor issue. Why should I care?
The move from conditional to unconditional copyright has had a number of unintended consequences. It has failed to benefit authors. It has imposed burdens on free speech and the creation of culture - burdens which have grown as digital technologies like the Internet lower the non-copyright barriers to creating and disseminating culture. It has moved copyright much closer to a collision with the Constitution.
6. How does "unconditional copyright" create these problems?
Under our traditional system of conditional copyright, the overwhelming majority (as much as 90%) of published works were neither registered nor noticed, and thus passed immediately into the public domain, where they were freely usable by others without the need to ask permission. Of the minority of works that were registered and noticed, and therefore protected by copyright, over 85% were not renewed after a relatively short (28 years) initial period of protection. These works also passed into the public domain. Our traditional copyright rules thus kept a vast amount of creative work wholly free of the burdens of copyright regulation - a freedom, it should be noted, that was granted by an author's voluntary decision not to register his work. Even for the subset of works for which authors secured copyright, the conditional regime's registration requirement served to keep records of works for which copyright was claimed, and moved most protected work into the public domain after a relatively short initial term - again, by the voluntary decision of the author. Both the existence and duration of copyright regulation was effectively narrowed to just those works that the author or his assigns had a desire to protect.
Article comments
1 - Mark Saleski
yep, i've seen weird cases of this in the digital (sort of) music world.
there was a website devoted to unearthing old exotica records. ones that had gone out of print years ago.
the site took old LP's and posted mp3's of the songs along with lovingly scanned cover art.
the copyright holders found out about it and had them shut down.
the holders had no interest in reissues of the material (they were asked!).
kinda sad.
2 - Eric Olsen
Very good analogy: should copyright owners have the right to prohibit access to unavailable works? If so, why? No one is gaining anything if the public has no access to works.
3 - bhw
I think that if you actually register the copyright to something, what you do with it [or not] is your business. I don't think we have a constitutional right to see/hear/etc. someone else's expression of ideas.
But I do sort of agree that the passive nature of copyright is kind of silly. You don't have to do ANYthing to claim your rights. It seems that you should have to protect your work actively.
4 - Mark Saleski
surely what they do with their material is their own business.
in the example above, i thought it was pretty short-sighted (and what else is new for a record label).
nobody was making any money off of these mp3s...and just think, i might have heard something interesting...which might have lead me to purchase some other music.
nah, it'd never happen.
5 - Eric Olsen
I don't think it IS only the creator's business what happens to a work of culture once it has been released into the world. We are talking about materials that were once available but now aren't, yet th ecopyright keeps them tied up so that no one else can do anyting with them either. Why should a creator or copyright holder have the ability to prohibit someone else from doing something creative with a work that they have not kept available to the public?
6 - bhw
Because it's mine, Mine, MINE! Ahahahahahahahahahaha!