Unless you've truly been living in a hole, you know the Supreme Court today delivered its ruling in Eldred v. Ashcroft. I thought the rejection of the perpetual copyright argument was rather inevitable given that judicial authority is oftentimes uncomfortable with statistics and modern science, but it doesn't end the fight.

There is room for a later court (it surely won't be this one) to backpedal on the First Amendment issues. The relatively tiny -- yet completely adequate -- copyright monopoly of the Founders' day naturally did not interfere with the incomplete incarnation of First Amendment rights of that time.

I think we have shown, especially in the clashes between innovative social commentary and corporations that hold ancient copyrights, that the built in procedures like the idea/expression dichotomy and fair use are simply insufficient to deal with how we express ourselves in a digital age. Copyright is woefully inadequate at protecting and encouraging modern art and media (or even that of non-Western cultural heritage).

And somewhere in the expansion of the scope of copyright to include more abstract compilations (like plot, character, or feel), the system has yanked out some of the idea and lost the traditional balance that fueled the public domain. Culture is not built on what is merely new, but what situates our new experiences in relation to the past. This is not a new idea, but an ancient one. It is ironic that the Supreme Court, built on the foundational principle of the common law that past experiences help sort out the present, is unable to recognize this.