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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, January 18, 2012

SCOTUS Upholds Reduction of Public Domain on SOPA Protest Day

The main opinion relied very heavily upon a prior opinion written by Ginsburg — the Court’s 2003 decision in Eldred v. Ashcroft, upholding Congress’s power to lengthen the terms of copyrights while they were still in force. The new case was different, involving the grant of copyright to works never protected previously under U.S. law, and thus not previously restricted on use or performance in this country. The Court majority, however, insisted that the guiding constitutional principles were not different.
I was no fan of the original ruling and this one (Breyer again provides a good dissent, mixing history, purpose and pragmatics nicely; Alito joined him) and this expansion is I guess ironically ruled upon on SOPA protest day. Here too Congress limits the free dissemination of knowledge to address ends that could -- if necessary -- be done with much more finesse. It is bad policy and given what is at stake, I'm inclined to go with the two here on the constitutional issues.  At best, the majority opinion is overbroad.

Today was Justice Ginsburg's day, handing down three rulings, each following the supermajority rule (7-2 and unanimous) of recent mid-term opinions. One statutory case will interest few another (see Alito's eight part perfect storm concurrence) addressed one of those various pratfalls that death penalty defendants deal with from time to time. As with the New Orleans prosecutor case, the orals basically made the final result expected -- even Scalia in dissent realized something hinky went on here. The result is -- again per usual -- is limited as this conservative leaning blog notes. As to blame, if the state leaves open such happenings, yes, the buck ultimately stops with them. The court stepped in because of constitutional protections, not some sort of civil liability arising from bad agency/client relations.

Prof. Volokh uses the SOPA protests to somewhat slyly make an issue of critics of Citizens United as to corporate right of speech. As I noted, he has a point, but Google -- as a special type of content provider -- can be differentiated even by CU critics.