Today the Tenth Circuit court ruled unanimously in favor of Larry Lessig, et al, in Golan v. Gonzales, a case about the scope of fair use. The court has acknowledged that First Amendment freedoms must be considered when copyright law is made.
The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the "traditional contours of copyright protection." In Golan, the issue is a statute that removes work from the public domain.