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Once In The Public’s Hands, Now Back In Picasso’s

Publication Date: 
March 21, 2011
The New York Times
Adam Liptak

Anthony Falzone, Executive Director of the Fair Use Project, spoke with Adam Liptak of the New York Times on the constitutionality of a 1994 law which he says has Congress selling public property.

Supreme Court arguments often concern not just the narrow issue in the case but also the implications of a ruling. You sometimes catch the justices squinting, trying to see over the legal horizon.

Nine years ago, for instance, the court heard arguments in a case about whether Congress was free to add 20 years of copyright protection for works that had not yet entered the public domain.

Several justices asked about a different and even tougher question: Was Congress also free to restore copyright protection to works that had entered the public domain and become public property?


In other words, said Anthony T. Falzone of the Stanford Law School Center for Internet and Society, which represents the plaintiffs, the Constitution meant to create incentives, not monopolies. “The whole point wasn’t to protect stuff,” he said. “It was to encourage people to make stuff, and everybody’s lost sight of that.”


That economic calculation rankled Mr. Falzone. “You’re selling public property,” he said. “Congress literally took the public’s property and handed it over to foreign copyright owners.”