In any event, this is really a rather bizarre day. I've spent most of it on the telephone, talking to reporters (no, not about Grokster—about this) and to clients. Needless to say, I wasn't getting much other writing done! Yesterday was much the same, minus the orthodontia.
I'll have a few thoughts on the other opinions that issued last Monday up either tonight or tomorrow. Grokster wasn't the only important one, even from the selfish perspective of just authors: there were three others to which authors need to pay at least some attention.
In the meantime, for your bemusement, consider the following hypothetical. It is only hypothetical. You should not try this in your own home; the stunt was performed on a closed circuit…
Copyright is currently granted for a term of life plus 70 years to natural-person authors. Many observers feel that this is far too long for copyright, and assert that the proper term should revert to that of the Copyright Act of 1790: fourteen years plus a fourteen-year renewal period.
Arthur Author died in 2001. His bestselling novel The Best of Times, the Worst of Times was completed in early 1980 (the exact date is uncertain), accepted for publication in 1981, and published in 1982. His heirs—three children who usually can't agree on what time it is, let alone what to do with what they've inherited from Arthur—finally agree on one thing: That they need your counsel on their rights. Pending legislation (the Public Domain Enhancement Act) would implement a flat 28-year copyright for all works, although any work that would be immediately placed into the public domain would get a three-year grace period.
1. Does the Takings Clause require the government to compensate copyright holders for reducing the copyright term for existing copyrights? Your answer should discuss whether the legislation's stated purpose to "enhance the public domain" satisfies the requirements of Kelo; whether sponsorship of the legislation by Ultralarge Database, Inc. would change your answer; and, presuming that the Takings Clause applies (even if you believe it will not), how just compensation should be measured.
2. What rights other than the copyright itself are at issue? What steps can the heirs can take to protect any such rights?
3. Can the Public Domain Enhancement Act be squared with US obligations under the Berne Convention?
Suggested time: 45 minutes.