Geeklawyer is a great admirer of Professor Lessig, particularly after his battering in the Eldred case when he was, manifestly, right. Unfortunately courts are occasionally wrong on the facts the law the policy, or even all three.
So it was nice to see the 10th Circuit ruling for him for once and against the US Government. He contended that the US implementation of the Uraguay Round of GATT allowed works in the public domain to be brought back into copyright protection. Along with a change to an opt-in copyright system (used almost everywhere else in the World) the changes changed the contours of US copyright law and thus triggered a First Amendment review.
Previously the public could do anything they pleased with the unprotected work. The court said that the infringement defence of Fair Use
and the doctrine of the Idea/Expression dichotomy did not do anything to address the loss of rights of use.
Sadly, like many US decisions, this one is unlikely to find much traction in UK cases as persuasive precedent and our public domain is also under attack.
That phrase...
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