More on After Eldred

[updated: 11:08] Before I head to the MeetUp, I want to make two minor points about Seth’s follow-up:

1.  Regardless of how many pages Corley spends on fair use, let’s make a slight clarification: Eldred is the SC precedent here.  If there’s any conflict between the two, Eldred’s controlling.

2.  Seth does have a point that Ginsburg’s support of fair use might be disregarded later.  As I’ve said before, courts might skip right over the “traditional contours” part and move right onto the strong deference to Congress.  And there’s plenty of leeway regarding how high the bar is for altering those contours.

Interpretations that set that bar at impossible levels are inappropriate, however, because it would render Ginsburg’s argument totally meaningless.  I reject the argument that the “traditional contours” argument is just a “vague phrase” without any meaning.  It’s not just that one phrase; it’s a thread that runs through her entire argument.  If none of that argument is important, then she would not have said that the lower court had erred in any way – her opinion would be equal to a categorical first amendment immunity for all copyright legislation.  Given that she specifically said no such immunity exists, I don’t see how one can ignore the traditional contours portion of her argument.

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