David Post, writing at The Volokh Conspiracy:

The Report proposes a series of rather radical — in the Jeffersonian sense — reforms, from dramatically shortening the copyright term (a no-brainer, actually) to expanding fair use and limiting the damages from infringement claims.

The report’s recommendations don’t go quite as far as my suggestion that fair use should be assumed rather than merely an affirmative defense, but Professor Post is right to highlight the opportunity for the GOP to differentiate on this issue.

In fact, I’m not sure there is much in there with which I would disagree, excepting the over-the-top (and even italicized) final sentence of the report’s conclusion:

Current copyright law does not merely distort some markets – rather it destroys entire markets.

That’s wrong. The current US copyright regime limits access, hinders creativity, and dampens innovation, thereby frustrating copyright’s Constitutional purpose. That fact, and I do consider it a fact, must be the foundation of the copyright reform we need in this country.

Professor Post, writing at The Volokh Conspiracy about the brief he helped write in the Aereo case:

copyright law does not exist for the benefit of authors; it uses the benefit granted to authors because that is a means to increase the creation and the availability of creative works to the public.

It’s important to note that this is not the Professor’s opinion, it is derived from the Constitution and the ways in which the Supreme Court has interpreted the Constitution (particularly Article I, § 8, clause 8).

The issue in this case is whether it is violative of copyright law for a company, Aereo, to essentially rent small digital television antennae to its customers that enable those customers to stream broadcast channels over the internet. Professor Post and his co-authors on the brief argue that it is not:

the court’s role in construing the statute is not to produce maximum authorial reward, but maximum public benefit. Where that means (as it often does) that it is the copyright owners who must persuade Congress to address the matter and adjust the balance so that it tips more in their favor, they are entitled and well-equipped to do that, as they have done so often in the past.

Read the amicus brief here.

Professor David Post of Temple Law served as an expert for the plaintiffs — yes, sex offenders — in this case. His focus, as he points out in his Volokh Conspiracy post, was on the overbroad nature of the statute barring internet use by sex offenders, which he believes, and the United States District Court for the District of Nebraska agreed, was beyond what the First Amendment allows.

Your first thought might be “who cares about a sex offender’s free speech rights?”

The answer, of course, is that the Constitution cares, particularly after they have served prison time and otherwise complied with constitutionally sound penalties for their crimes.

The core of the court’s holding lies in the following passage:

The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.¹

This looks to me like a well-meaning statute, meant to keep sex offenders away from kids online, that was very poorly drafted. You could achieve the desired goal using far narrower provisions. I hope someone proposes a corrected statute to that effect.

Mr. Eugene Volokh congratulates my former copyright law professor David Post of Temple Law on having a blog post of his cited in a 9th Circuit opinion (PDF).