First Amendment Challenges to Copyright Law: Kahle v. Gonzales and Golan v. Gonzales

By David S. Olson
July 03, 2008
There has been an attempt in the last few years to reverse some of the territorial creep of copyright law that has occurred in recent decades. Th ese challenges have sought to undo copyright term extensions, increase the purview of fair use exceptions, and, in the cases discussed below, to constrict Congress’s ability to expand copyright protections by use of First Amendment arguments. There is a reason for this recent pushback against copyright law. It is well known that the ways in which we create, distribute, critique, imitate, and copy writings and graphic arts have changed enormously in the three decades since the advent of the personal computer. Much ink has been spilled detailing the powerful changes that computers, cheap memory, digitization, the Internet, and increasing broadband adoption have wrought in the way that content is created and copyright enforcement challenged. But at least as important for copyright as technological changes are the profound changes to copyright law itself that have resulted in an unprecedented increase in the number of works copyrighted and the length of time copyright endures. In 1976—the same year that the Apple I personal computer was created—Congress changed copyright law from an “opt-in” registration system, in which less than half of all new works were copyrighted each year and the average copyright lasted only a short time, to a longer-term automatic copyright system from which it is relatively difficult to “opt-out.”