Lawrence Lessig points out, much the way I did in my note on Grokster, and much the same as Breyer told me when he was at my school - copyright belongs to congress. What LL doesn’t say is sometimes Congress is slow, or doesn’t want to get involved, so it falls to the courts anyway. See his editorial in today’s NT Times - Make Way for Copyright Chaos
For most of the history of copyright law, it was Congress that was at the center of copyright policy making. As the Supreme Court explained in its 1984 Sony Betamax decision, the Constitution makes plain that “it is Congress that has been assigned the task of defining the scope of the limited monopoly,” or copyright. It has thus been “Congress that has fashioned the new rules that new technology made necessary.” The court explained that “sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials.” In the view of the court in Sony, if you don’t like how new technologies affect copyright, take your problem to Congress.
Worth a read before it disappears behind the NY Times memory hole.
Filed under: Copyright
