Category: Copyright

In response to a letter by Carl Malamud and other notables questioning the $86,625 price tag on the copyright catalog, the U.S. Copyright Office has replied, and that reply has been posted on the Library of Congress Blog.

Here's an excerpt:

The U.S. Copyright Office neither sets the price nor receives any direct revenue from the sale of the Copyright Cataloging database. Rather, access to these records is a service offered through the Cataloging Distribution Service (CDS) of the Library of Congress, which is mandated by Congress to provide this and other services to the public at a charge of production and distribution cost plus 10%. . . .

Fortunately, recent cost savings realized within CDS are anticipated to result in a drop in the price of many services available from CDS, including the Copyright Cataloging database subscription service. Any new pricing structure will appear first at on the CDS Web site www.loc.gov/cds/ in late October or early November 2007, then in the 2008 CDS Catalog of Products in January 2008.

Source: Raymond, Matt. "The Price of the Copyright Catalog." Library of Congress Blog, 26 September 2007.

On September 4th, Christopher Sprigman announced that the 10th Circuit Court has decided in favor of the Stanford Center for Internet and Society's appeal in Golan v. Gonzales.

Here's an excerpt from Sprigman's posting that explains the case:

The Golan case challenges the constitutionality of the Uruguay Round Agreements Act, by which, among other things, Congress removed thousands of books, films, songs, and other creative works from the public domain and “restored” them to copyright. The Golan plaintiffs, a group of conductors and film distributors who used these public domain works, challenged Congress’s depredation of the public domain. The primary ground for the challenge was that Congress, by removing works from the public domain, departed from the “traditional contours of copyright protection” in a way that limited free speech in violation of the First Amendment. Limited how? By making the use of the former public domain works subject to the approval of the owners of the “restored” copyrights. By, in short, imposing copyright burdens on free speech where none had existed before.

The Golan plaintiffs’ First Amendment theory was built on something the Supreme Court said in Eldred v. Ashcroft. . . . . Where Congress does not act in accordance with history, but instead alters copyright’s “traditional contours”, courts must conduct a more searching First Amendment review to ensure that whatever Congress has done to the copyright law—which is, of course, a regulation of speech—does not burden speech in ways that cannot be justified.

Since Sprigman's post, there has been further commentary in the blogosphere. Here's a selection of postings:

• "10th Cir.: Shrinking the Public Domain Implicates the First Amendment"
• "A Big Victory: Golan v. Gonzales"
• "Copyright & the First Amendment"
• "Golan v. Gonzales—How the First Amendment Limits Copyright Law"
• "Golan's Copyright Lows"

In a big win for high technology companies, the House passed a bill that would limit patent litigation.

Here's an excerpt from "House Passes Bill to Curb Suits by Patent Owners":

The measure passed by the House would change the rules at the Patent and Trademark Office so patents would go to the first person to file an application, not necessarily the first inventor. . . . It would also allow third parties to introduce evidence against applications and would create a system, called post-grant opposition, to challenge new patents.

Source: Bloomberg News. "House Passes Bill to Curb Suits by Patent Owners." The New York Times, 8 September 2007, B4.

Barton Beebe, Associate Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University, has released "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005."

Here's an excerpt from the e-print's abstract:

This Article presents the results of the first empirical study of our fair use case law to show that much of our conventional wisdom about that case law is wrong. Working from a data set consisting of all reported federal opinions that made substantial use of the Section 107 four-factor test for fair use through 2005, the Article shows which factors and subfactors actually drive the outcome of the fair use test in practice, how the fair use factors interact, how courts inflect certain individual factors, and the extent to which judges stampede the factor outcomes to conform to the overall test outcome. It also presents empirical evidence of the extent to which lower courts either deliberately ignored or were ignorant of the doctrine of the leading cases, particularly those from the Supreme Court.

Source: Beebe, Barton. "An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005." SSRN (2007).