Balkinization: Golan v. Gonzales — How The First Amendment Limits Copyright Law

The Tenth Circuit has handed down a very important copyright case, Golan v. Gonzales, which holds that section 514 of the Uruguay Round Agreements Act– which implements the Berne Convention on copyrights– may violate the First Amendment because it takes some materials out of the public domain and makes them copyrighted. Relying on language in Eldred v. Reno, the court held that the URAA violated the First Amendment because it altered the “traditional contours of copyright law.” It pointed out that the tradition in the United States has been for works to be created, copyrighted and then revert to the public domain. It also pointed out that traditionally Congress has rarely ever restored copyrights for public domain works, and then only in emergency situations where, for example, war prevented the authors from complying with copyright formalities. The court concluded that neither the idea/expression distinction nor the fair use defense ameliorated the fact that work that was free for anyone to use was now locked up in fresh copyrights. Hence it remanded for further determination of whether the URAA is content neutral or content based in order to apply the appropriate level of scrutiny.

Counterfeit Chic: “Copying Clothes Over a High-Speed Connection”
“In today’s New York Times, Eric Wilson goes behind the scenes at Simonia Fashions, one of many companies waiting for the first photos from New York Fashion Week to appear online. Not because the proprietors are interested in fashion’s new creative direction, mind you, but so that they can pick out the most popular designs and get cheap copies into stores — often before the originals are available for sale.”
Update: Prof Scafidi’s testimony before the House Judiciary Committee on the protection of fashion.

Prof Goldman: American Blinds-Google Settles:
“After almost four years of litigation, the American Blinds lawsuit ended today with a stunning victory for Google. According to a copy of the settlement agreement sent to me, Google isn’t paying any money to settle the dispute, and the settlement merely says that American Blinds won’t sue Google so long as Google follows its current trademark policy. So, after spending enormous amounts on lawyers over the past 4 years, American Blinds gained absolutely nothing from the litigation. Instead, American Blinds ends the litigation worse than when it started (putting aside the legal fees); it had a judge declare two of its purported trademarks unenforceable, and it wrote a check to Google as a sanction for mismanaging the discovery process.”