U.S. Copyrights: The Good, the Bad, and the Ugly (Oops, did I just violate somebody's copyright?)

http://chronicle.com/article/A-GoodBad-Week-for-Free/130422/?sid=pm&utm_source=pm&utm_medium=en

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SUPREME COURT OF THE UNITED STATES
No. 10–545
LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[January 18, 2012]

Syllabus
ized by §514. Pp. 23–32.
(a) The pathmarking Eldred decision is again instructive. There,
the Court held that the CTEA’s enlargement of a copyright’s duration
did not offend the First Amendment’s freedom of expression guaran-
tee. Recognizing that some restriction on expression is the inherent
and intended effect of every grant of copyright, the Court observed
that the Framers regarded copyright protection not simply as a limit
on the manner in which expressive works may be used, but also as an
“engine of free expression.” 537 U. S., at 219. The “traditional con-
tours” of copyright protection, i.e., the “idea/expression dichotomy”
and the “fair use” defense, moreover, serve as “built-in First Amend-
ment accommodations.” Ibid. Given the speech-protective purposes
and safeguards embraced by copyright law, there was no call for the
heightened review sought in Eldred. The Court reaches the same
conclusion here. Section 514 leaves undisturbed the idea/expression
distinction and the fair use defense. Moreover, Congress adopted
measures to ease the transition from a national scheme to an inter-
national copyright regime. Pp. 23–26.
(b) Petitioners claim that First Amendment interests of a higher
order are at stake because they—unlike their Eldred counterparts—
enjoyed “vested rights” in works that had already entered the public
domain. Their contentions depend on an argument already consid-
ered and rejected, namely, that the Constitution renders the public
domain largely untouchable by Congress. Nothing in the historical
record, subsequent congressional practice, or this Court’s jurispru-
dence warrants exceptional First Amendment solicitude for copy-
righted works that were once in the public domain. Congress has
several times adjusted copyright law to protect new categories of
works as well as works previously in the public domain. Section 514,
moreover, does not impose a blanket prohibition on public access.
The question is whether would-be users of certain foreign works must
pay for their desired use of the author’s expression, or else limit their
exploitation to “fair use” of those works. By fully implementing
Berne, Congress ensured that these works, like domestic and most
other foreign works, would be governed by the same legal regime.
Section 514 simply placed foreign works in the position they would
have occupied if the current copyright regime had been in effect when
those works were created and first published. Pp. 26–30.
609 F. 3d 1076, affirmed.