The disappointing result in Kahle v. Ashcroft [pdf of the opinion available from Joe Gratz], rejecting constitutional challenges to changes to copyright law that dramatically decrease the likelihood that copyrighted works will fall into the public domain, highlights an issue considered more leisurely in a recent piece in the Fordham Law Review by NYU law professor Diane Zimmerman: Is the public domain constitutionally required? Do we have to have it? The argument of the various “Ashcroft” cases (Eldred, Golan, Kahle) boils down, I think, to the position that it is, and that we do: The public domain is itself a sort of fact, or an idea, or a thing, that is a given feature of the universe and that Congress lacks the power to take away.
As a philosophical matter, I want to chew on that a little bit. Is the public domain really “out there” in that sense, growing (theoretically) bit by bit with the accretion of new material? Or do we (we as society, or we as Congress) make the public domain, and if we do, how do we make it, and what legal and other limits constrain our behavior? As a litigation tactic, I wonder whether the implicit framing of these cases as preservation of “The Public Domain” (initial caps, like “Yosemite Valley” or “Yellowstone National Park”) is really the most effective strategy. We know from the Court majority in Eldred v. Ashcroft itself that “The Public Domain” doesn’t sell as an intuitive matter. When you run into a judge who is well-known for sticking to first impressions (like, for example, Judge Chesney, who decided the Kahle case), The Public Domain is not going to get anywhere.