Copyright, Containers, and the Court: A Reply to Professor Leaffer

Abstract

I find little with which to be pleased in the Court’s recent copyright cases. The Court seems to be fighting a holding action, fending off the future by resolutely gazing backward. While the Court has not itself enlarged copyright, it has not meaningfully evaluated Congress’s power to do so, and its decisions freeze copyright into a moment in time long past. Until copyright law recognizes that content is no longer container-bound, it will continue to flounder, desperately seeking analogies to the past and missing the significance of the technological changes all around us. That said, I agree with Professor Leaffer that the future is not black but gray. I believe that there is still much that can be done about the expansion of copyright and its increasing concentration into the hands of a media oligopoly, beginning with an awakening of public concern with those vital rights that are eroded as copyright expands. As long as that can happen, there is hope. Sadly, if that does not happen, then I don’t think either Congress or the Court will save us from ourselves.

Keywords: Eldred, Tasini, Dastar Corp., copyright maintenance, First Amendment, property, intellectual property, copyright, fair use