After Eldred

First up, Samuelson’s article.  You should check it out if only because it’s a nice overview of what was going on in copyright law before Eldred.  It also has a mountain of footnotes. These articles in particular caught my eye:



  • Alfred C. Yen, Eldred, the First Amendment, and Aggressive Copyright Claims, Houston L. Rev. (forthcoming 2004).
  • Michael D. Birnhack, Copyright Law and Free Speech After Eldred v. Ashcroft, 76 S. Cal. L. Rev.(forthcoming 2003);
  • David McGowan, The Code-Speech Conundrum, 64 Ohio St. L.J. (forthcoming 2003) (criticizing Corley)

  • Edward Lee, The Public’s Domain: Evolution of Legal Restraints on the Government’s Power toControl Public Access Through Secrecy or Intellectual Property, 55 Hastings L. J. (forthcoming 2003)


After a lengthy intro to the issues, she gets into the meat of the article: “six challenges to intellectual property rules with constitutional overtones.” She didn’t number them, but here’s a rough approximation, some of which will be familiar from the Volokh piece.


1.  Dastar.  The article was written before the decision, but, as she notes, a pro-Dastar decision gives some hope that the public domain cannot be destroyed using non-copyright means.


2.  Golan (which, as of yesterday, is now fully briefed) and other cases regarding the restoration of expired copyrights. Eldred does not say that you can take stuff out of the public domain, and the Graham and Bonito Boats precedents apply more directly to restoration (they were part of the Eldred argument, too, if I recall).  The result of Dastar is in Golan’s favor
But, one tricky part of Golan remains: the treaty making/foreign policy powers.  The Court doesn’t like to get into this area. If we get a pro-Golan result, that means treaties entrenching the DMCA can be targeted. An anti-Golan result that reaches the treaty power issue would make us totally screwed.  IP law will continue to be an international treaty issue, and the Internet probably will increase this trend.


3.  Database law.  The Feist creativity-standard for copyrights is a problem here, as well as the importance of the idea/expression dichotomy as reflected in Eldred (see Volokh, below)
Another tricky issue: can you get around this using Commerce Clause?  Maybe.  The government can’t do trademark under IP (see Trademark Cases), but you can do it under commerce.


4. Challenge to DMCA in full.  This is what everyone has been talking about.  The main problem I saw with Kerr’s argument is that he doesn’t consider Eldred.  But let’s talk about Corley for a second, because it came down before Eldred.  Say other courts believe Corley got it right during its time – what has time/experience and Eldred changed?


Let me discuss this briefly now and return to it after I read some more Corley articles (this is what the summer does to me – adds even more stuff to my reading list!).  The court said “we note that the Supreme Court has never held that fair use is constitutionally required.”  That was suspect then, and it’s even moreso now.  The SC clearly sees fair use as part of the “traditional contours” necessary in copyright law.  As for the rest of the opinion, I doubt Eldred is much help.  The court said that 2600 couldn’t be a fair user because it was just trafficking and that the DMCA did not preclude fair use simply because it made it technologically difficult.


This is where Frank’s write-up turns on the light bulb – his points relate to a  big thread within Corley.  The court clearly had trouble figuring out how to treat technology in relation to expressions.  It refused to differentiate between object code and source code.  This part in particular reminds me of what Frank’s getting at:



“Unlike a blueprint or a recipe [regulated as “pure speech”], which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet.  The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse….[The] momentary intercession of human action does not diminish the nonspeech component of code, nor render code entirely speech, like a blueprint or a recipe.”


That’s splitting the technology from the expression, divorcing the use of code from actual human experience.  The court is trying to find a middle ground, speech with a non-speech component; it’s trying to grasp how the tech is not just an intermediary between human and expression, but embedded inherently in the experience.  But, in reaching its conclusion, the court fails to go far enough.  Though this is in the context of considering code by itself, this reasoning placed in IP context fails to “[confront] the fact that the distributed artifact is not a creative expression without access to the technology implicit in the artifact’s design.”  A DRM wma file is not the same creative expression without “without human comprehension of its content, human decision-making, and human action.”  And it’s the DRM that’s restricting the human aspect.  We have to be able to interact with the technology in order to interact with the expression.  (…this is shaky, I’ll see what I can do.  Note, I’m not really trying to deal with this as legal line drawing.  Just trying to map their legal reasoning to their larger vision of how we interact with code.)


And this sort of thinking bears heavily on the the whole issue of whether simply making fair use inconvenient via DRM is enough to strike the law.  I suppose you can make those technologically inconvenient fair uses, in the abstract.  But it’s greatly altering the way you experience the content.


5. Experience and time might help with these points from Corley, along with the court’s last point, that no content users have been harmed by the DMCA (bah!). Samuelson suggests that even if we couldn’t mount an attack on the entire DMCA, we could see more successful challenges by particular defendants.  They might have more success as fair users rather than traffickers (think Felten).


Samuelson also brings up conflict between Bunner and Corley, for Bunner does allow the publishing of source code.  True, it’s not a DMCA case, but it is related to the strength of the First Amendment in copyright claims.


6.  Two final impacts.  First, from non-copyright to copyright impact – how will a case like Bunner affect copyright cases?  And, vice-versa – how will copyright cases affect patent cases, for example.  Finally, Samuelson notes that Eldred puts cases like Bowers in doubt.


Now: I’m not sure I need to say anything about Kerr’s argument, because it’s been covered elsewhere.  But, as for Balkin’s DMCA=unconstitutional arguments – how should one frame an argument that the DMCA’s burden on fair use is too severe?  Again, I think it’s going to be critical to determine what fair use we’re talking about – constitutional or statuatory, and what constitutionally mandated fair use actually is.  The burden on commentary, criticism, and parody is far less than on time-shifting, space-shifting, etc.  The technological difficulty argument is much easier to make when it comes to being able to copy and paste versus retype quotations from something you’re criticizing.  Maybe one would have to consider the tradition of protecting general purpose tools – but, that comes from the statutory construction of the 1976 Act in Sony.


Oh, and as for Seth’s argument about the “DMCA does not limit fair use” clause – I don’t buy it.  Corley, for good reason, did not read that clause to mean that the DMCA provided a fair use exception.  Its designers did not intend such an exception.