Joho the Blog
An Entry from the Archives

A for-pay article on Salon — jeez, I wish they'd keep in the for-free side of the ledger articles so clearly in the public interest — tells us not to give up the copyright battle yet. Siva Vaidhyanathan writes:

While dismissing the notion that excessive copyright expansion has severe First Amendment implications, she [Ginzburg] invoked two of the classic democratic safeguards of American copyright: the idea/expression dichotomy and fair use. Because of these two concepts, Ginsburg concluded, the court need not take the censorious power of copyright seriously. ...

In the wake of this decision, if Congress and later courts are going to take Ginsburg's words seriously, they must take fair use and the idea/expression dichotomy seriously. They cannot take them for granted, as so many have in recent years.

In dismissing First Amendment concerns, Ginzburg wrote : "... when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." This, the article says, may give us a hook on which to hang an argument against the DMCA since it ploughs right over those traditional contours.

Further, the article says that this decision moves the issue from the courts back to Congress where the will of the people has a small shot at being heard: when Larry "Bless His Heart" Lessig and Eldred began this case four years ago "they had no army of CD burners and TiVo users behind them."