Copyhype

This afternoon, the Supreme Court will hear oral arguments in Golan v. Holder. I previously wrote about the case here, which has bounced around between the District Court and the 10th Circuit several times over the past 10 years before landing here. Check out SCOTUSblog for links to each side’s briefs as well as the numerous amici briefs for both sides.

Golan involves the constitutionality of the restoration provisions that were passed as part of the Uruguay Round Agreements Act of 1994 (URAA). ¹Those provisions made up § 514 of URAA and are codified at 17 USC § 104A. Those provisions restored copyright protection to foreign works which were still protected in their source country but that had fallen into the public domain in the US prior to 1996 because of failure to comply with formalities (like lack of proper notice), because of lack of national eligibility, or because the work was a sound recording made before 1972. The Act excluded liability for any use of restored works prior to restoration, limited the remedies available for existing derivative works based on restored works. “Reliance parties” — parties which exploited the work before copyright restoration — could continue to exploit the work without liability unless the owner of the work serves a notice to enforce his rights.

Whether the restoration provisions here stand or fall will have little effect beyond reliance parties like Golan and the other plaintiffs because of the limited scope of the law, but many who support Golan’s position are hoping to use a Supreme Court victory as a broader vehicle for affirming the values of the public domain in general and finally getting independent First Amendment review applied to copyright law to serve as a limitation on Congressional policy in that area — policy they often disagree with.

The Supreme Court is presented with two questions. Do the restoration provisions of the URAA exceed Congress’s authority under the Copyright Clause? Or, does this law run afoul of the First Amendment?

The Copyright Clause

On the first question, Golan essentially is asking the Supreme Court to draw a line in the sand: once a work falls in the public domain, it stays there. It paints a picture of the history of copyright law as one showing an “unbroken respect for the integrity of the public domain”. Under this view, the URAA restoration provisions represent a departure from this history. Golan worries that if the Court doesn’t draw a line here, it would put everything in the public domain into question, as Congress would have no barrier to removing works from the public domain whenever it wishes anytime in the future.

The US argues that much of Golan’s arguments are merely a restatement of Eldred’s failed assertion that the Copyright Clause embodies a quid pro quo between the public and authors. This assertion reads the preamble of the Copyright Clause — the “to promote the progress of science” language — as an independent limitation on Congressional authority. But, as the US points out, the Eldred Court rejected that interpretation and gave deference to Congress for crafting copyright legislation that best advances the goals of the preamble.

The US also argues that restoration doesn’t violate the “limited times” limitation because it doesn’t extend the length of the term restored works are protected for, it only protects them for as long as they would have been protected but for their lack of adherence to pre-Berne Convention US copyright law.

Finally, the US disputes Golan’s characterization of an unbroken history of leaving public domain works untouched. The very first Copyright Act (1790), in fact, conferred “federal copyright protection upon many works that were previously subject to unrestricted exploitation by the public.”

First Amendment

When the Supreme Court decided Eldred, it said that heightened First Amendment review of a copyright statute is unnecessary when “Congress has not altered the traditional contours of copyright protection.” The 10th Circuit ruled that Congress had altered these contours when it passed the URAA in its first decision. ²Golan v. Gonzales, 501 F.3d 1179 (2007). When Golan reached the appeals court the second time, the court held that copyright restoration was a permissible content-neutral regulation. ³Such regulations don’t violate the First Amendment if they advance “important governmental interests unrelated to the suppression of free speech” and don’t “burden substantially more speech than necessary to further those interests.”

Golan agrees with the 10th Circuit’s review of copyright restoration as a content-neutral regulation but argues that it fails this review. It claims the free speech rights at stake are too important and the government’s interest — which Golan describes as conferring “windfalls directly on foreign authors in the hope that this may create later windfalls for U.S. authors” — is not even a “legitimate” interest, let alone an important one. What’s more, Golan alleges that Congress lacked substantial evidence that the URAA would actually advance this interest. Golan lastly argues that even if this was an important interest, Congress could have drafted the restoration provisions more narrowly to decrease their burden on free speech interests.

The US argues the polar opposite: copyright restoration shouldn’t be subjected to further First Amendment review at all. It says the 10th Circuit misread Eldred’s statement about the First Amendment and the “traditional contours” of copyright protection as though the Court had created a new test for deciding when to apply independent First Amendment review to a copyright statute. Even if Eldred had created a “freestanding inquiry”, the URAA hadn’t altered the traditional contours of copyright protection. Uses of restored works would still be protected by copyright’s built-in free speech safeguards, the idea/expression dichotomy and fair use.

The US concludes its argument by saying that even if further First Amendment scrutiny is required, copyright restoration is constitutional. It supports this conclusion with testimony and congressional hearings that shows it had a significant interest in passing this legislation, and the restoration provisions were only as broad as necessary to advance that interest.

What to expect?

In many ways, Golan is a sequel to Eldred v. Ashcroft. Both cases were part of a series of challenges to copyright law changes in the mid-90s brought in part by Lawrence Lessig. Golan initially included a claim identical to Eldred — that the CTEA was unconstitutional. This claim was stayed when the Supreme Court granted cert and dismissed after its decision. ⁴Golan v. Ashcroft, 310 F.Supp. 2d 1215 (D. Colo. 2004). Now at the Supreme Court, Golan presents the same dual questions regarding the extent of Congress’s authority under the Copyright Clause and the First Amendment limitations on the exercise of that authority. In addition, the First Amendment issue in Golan relies heavily on the Court’s holding in Eldred.

Finally, in Eldred, the plaintiffs had attempted to draw a parallel between the CTEA and the laws struck down in US v. Lopez and US v. Morrison. In those cases, the same Justices that would rule on Eldred had ruled that two recently-passed laws were outside Congress’s authority to regulate interstate commerce, an authority that before than had been steadily expanding to the point where it seemed unlimited. Eldred hoped to convince the Court that the CTEA was like those laws — an expansion of Congress’s authority under its copyright power that would continue indefinitely unless the Court places a constitutional limit on it.

This argument, of course, failed, and Lessig — who had argued the case in front of the Court — publicly shouldered the blame for that failure. It will be interesting to see how Golan’s legal team approaches such a similar case with the lessons of Eldred, presumably, in mind.

Hopefully we get to see the Court push both parties on the relevant history of copyright law, since it plays a starring role in the question of whether and how Congress’s copyright power is limited, and both parties present such different versions of that history. Interestingly, the DC Circuit of Appeals rejected strikingly similar arguments against the URAA’s restoration provisions in Luck’s Music Library v. Gonzales. ⁵407 F.3d 1262 (2005). It notably took the same view of the relevant copyright law history as the US argues here: the Copyright Act of 1790 and the wartime restoration acts placed public domain works under copyright protection, lending support to the constitutionality of such action.

It will also be interesting to see if the Court asks about the then Solicitor General’s remark during oral arguments at Eldred about a “bright line” separating the constitutionality of extending existing copyright terms from granting protection after the term expired. Golan characterizes this remark in its brief as an acknowledgment by the US that it is prevented from restoring copyright to public domain works; the US responds that Golan misreads the remark — it was anything but a concession of a constitutional limitation.