Yesterday, while hundreds of sites (including this one, along with Google, Wikipedia, and Reddit) were going black to protest SOPA and PIPA, the Supreme Court released its own copyright blackout, Golan v. Holder (PDF). Justice Ginsburg’s majority opinion held that the First Amendment did not prohibit reclaiming works from the public domain.
Justice Breyer, joined by Justice Alito, gave a stirring dissent. Copyright law, he said, must be “designed to encourage new production,” not just redistribute works already created. Re-copyrighting already-written works “does not encourage anyone to produce a single new work.” Instead, backwards-looking copyright grants create a serious public choice problem:
Whereas forward-looking copyright laws tend to benefit those whose identities are not yet known (the writer who has not yet written a book, the musician who has not yet composed a song), when a copyright law is primarily backward looking the risk is greater that Congress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress.
We see the same problem with SOPA and PIPA. The legislation pits organized incumbents against future innovators. Congress risks being captured by the lobbying power of current copyright industries, organized in the MPAA and RIAA, before the artists who have yet to create and the industries who support them can find their political voice. But the SOPAstrike reminds us that more than industry interests are at stake here — the general public, the editors of and users of Wikipedia, the contributors and readers of Reddit and the coders and browsers of Mozilla also create and bring value to the Internet.
Golan reminds us too that we can’t count on the courts to help us where Congress gets copyright wrong. The majority leaves a great deal to Congressional discretion, as it did in Eldred (striking down a challenge to copyright term extension): “the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works.” In a chilling phrase, the Golan majority quotes the district court’s finding of a “settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.”
Perhaps a later Court will see the First Amendment as a stronger check on Congressional power to restrict speech in the name of copyright, but where we can’t count on 5 (Justices), defenders of free communications on the open Internet will need to count to 51% of Congress. Keep up the pressure, it’s having an impact!