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).1 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.2 When Golan reached the appeals court the second time, the court held that copyright restoration was a permissible content-neutral regulation.3

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.4 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.5 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.

Footnotes

  1. Those provisions made up § 514 of URAA and are codified at 17 USC § 104A. []
  2. Golan v. Gonzales, 501 F.3d 1179 (2007). []
  3. Such 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.” []
  4. Golan v. Ashcroft, 310 F.Supp. 2d 1215 (D. Colo. 2004). []
  5. 407 F.3d 1262 (2005). []

23 Comments

  1. Pointless, but fun: So what’s everyone’s predictions?

    I think Section 514 will be upheld as constitutional under rational basis scrutiny only. Congress enacted it pursuant to its enumerated Article I power under the Copyright Clause. As long as it’s for a “limited time” and for a rational reason, it passes muster. The First Amendment argument is a loser–the “traditional contours” have not been changed and the internal safeguards are still in force.

    The government should win handily: 8-1 (Breyer dissenting).

  2. The SCOTUS Blog should have links to the arguments later this afternoon. I seem to recall audio used to be linked, but when I visited the site yesterday I could not find such links. Perhaps someone can direct me to the correct location.

  3. Good luck with that 7-1 prediction about the government winning “handily”…

    “CHIEF JUSTICE ROBERTS: General, there is something at least at an intuitive level appealing about Mr. Falzone’s First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?

    GENERAL VERRILLI: I don’t think so, Mr. Chief Justice…”

    Apparently most commenting on this site feel the same way as Verrilli. Shame.

    More here –

    “CHIEF JUSTICE ROBERTS: What about Jimmy Hendrix, right? He has a distinctive rendition of the national anthem, and all of a — assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?

    GENERAL VERRILLI: What copyright does, by definition, is provide exclusive rights in expression; and so if the First Amendment is triggered whenever copyright provides exclusive rights in expression that it didn’t used to provide, then heightened scrutiny will apply any time Congress exercises its copyright power, and what the Court said in Eldred -

    CHIEF JUSTICE ROBERTS: So he is just out of luck? And that’s just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So those people are just out of luck?

    GENERAL VERRILLI: Well, of course, under Section 514 they are not out of luck because it has significant protections and accommodations for derivative works. The question of whether there should be heightened First Amendment scrutiny, we think Eldred answers, that — that first the Copyright Clause already contains very significant accommodations of First Amendment interests. The idea/expression dichotomy, fair use; and — and that is going to provide — maybe — maybe Jimmy Hendrix could claim fair use in that situation….”

    If the national anthem were taken out of the public domain, does anyone here honestly believe that rendition of the ENTIRE work would somehow be ‘fair use’? Amazing how Verrilli uses a tautology to avoid the issue here. Even more amazing that many on this site don’t seem to intuitively grasp the argument that the Chief Justice himself admits is intuitive.

    • I’m not making any kind of normative argument. I’m simply saying that, in light of Eldred, I think this is a valid exercise of Congress’s authority under the Copyright Clause. The Constitution says that Congress can secure to authors exclusive rights for limited times. That’s all Congress has done here. End of analysis.

      The First Amendment argument is intuitively pleasing, as I’m sure almost all arguments are on either side of any issue that’s reached the Court. But being intuitively pleasing doesn’t necessarily translate into winning the day. The government’s argument is intuitively pleasing as well, especially since it comports with the text of the Copyright Clause and the Court’s reasoning in Eldred.

      I understand that folks may not like this (and to some extent I agree with that), but I think that beef is with Congress. This is a policy issue, not a case where the Court needs to strike down a statute as unconstitutional.

      • I’m curious then, how specifically would you answer the Chief Justice’s challenge here?

        “CHIEF JUSTICE ROBERTS: General, there is something at least at an intuitive level appealing about Mr. Falzone’s First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?”

        Would you not agree that this poses a First Amendment problem to begin with? Or do you deny that? Is our ability to play music, read poetry aloud, perform Shakespeare all predicated on what Congress feels is the best policy for us? Should Congress have the ability to yank that right (privilege??) from us? Or are there more fundamental freedoms at stake here?

        If you don’t deny that First Amendment protections are at stake here, then is your position that foreign treaties should trump First Amendment protections?

        • As I said, in this situation with this law, the First Amendment is not implicated. This is so because Congress is legislating pursuant to its Copyright Clause enumerated power–it’s securing to authors exclusive rights for limited times.

        • Justin, I think both you and Justice Roberts are falling into a fallacy of your own making, which is due to ignoring context.

          You can most certainly perform Shostakovich and even “Umbrella” – if you so desire – provided you don’t do it in public. The protection offered by copyright extends to public performance only.

          Moreover, you will be able to perform these works in public – provided you secure the appropriate license (which is typically a case of simply contacting the appropriate collective rights agency). Thus, the change should be phrased as:

          “One day I can perform Shostakovich [without seeking permission and for free]; Congress does something, the next day I [have to secure and pay for a license].”

          It is not a “serious First Amendment problem”, because the issue is primarily one of money. To assume that lack of money to speak as you see fit (how about through the medium of cinema?) is a First Amendment violation would be silly.

          • I assume most people will be able to intuitively understand the fallacy in your argument, but I will concretely address it regardless –

            First, your claim that “The protection offered by copyright extends to public performance only” is simply wrong (as I would expect even Terry Hart would be willing to admit). It also prevents you from creating derivative works from it among other rights. If an orchestra went through a great deal of time, labor and expense to create its own recording of a Shostakovich work (perhaps even for sale), placing the underlying Shostakovich work back into the public domain after the fact deprives the orchestra author(s) of their own set of copyrights.

            Your claim that this is not a “serious First Amendment problem”, because the issue is primarily one of money defies logic. If I am able to publicly state ‘X’ due to my free speech rights (emphasis on the word “free” in this instance), and then the government suddenly comes along and says “for now on, you can no longer state ‘X’ in public without getting a ‘permission license’ first from a third party, that makes a mockery of the entire concept of free speech. The Supreme Court correctly struck down poll taxes which used to force people to pay for the ‘privilege’ of voting. That alone should inform you that such schemes can interfere with free speech and civil rights.

            If they did the same thing with Shakespeare and required you to pay to get a license in order to recite it in a park, would you still maintain that there is no First Amendment issue here? Only a ‘money’ issue which doesn’t impact free speech rights? (The fact that Shakespeare is a much older work and currently still in the public domain is irrelevant to the larger issue in play here – the concept that requiring paid licenses to perform, remix and create derivative works from underlying works that were once in the public domain strongly impacts free speech concerns.).

            What if the rights holder isn’t even interested in money and simply denies such rights altogether?

            I’m happy to fall into the same intuitive ‘fallacy’ that the Chief Justice apparently shares with me in this instance.

          • If an orchestra went through a great deal of time, labor and expense to create its own recording of a Shostakovich work (perhaps even for sale), placing the underlying Shostakovich work back into the public domain after the fact deprives the orchestra author(s) of their own set of copyrights.

            Incorrect. The orchestra would have created a sound recording, which is entirely distinct from the underlying musical work. If the musical work was transferred to the public domain, it would not affect the orchestra’s copyright to its sound recording in any way.

    • Actually, other than the fact he is long passed, Jimi would be able to play his rendition to his heart’s content. First, it is an instrumental, so Key is out of the picture. Second, the score was written in London about the 1760′s. Even though a “foreign work”, it is precluded from the reach of 104a since the rights in England lapsed a short while ago.

      • In terms of analyzing the specific hypothetical that the Chief Justice used, you are right. But naturally nobody is concerned about that specific example. Rather, they are concerned with the larger underlying issues –

        1. People (anyone, not just Jimi Hendrix) relying on public domain works to use their time, sweat and perhaps money to create derivative works from the underlying public domain and expecting to reap copyright protections from their work (which supporters of the current law apparently have no problems with denying them).

        2. Relying on public domain works to engage in free speech activity (which may or may not be the basis of creating derivative works that would otherwise be available for copyright protections), and then suddenly waking up one day to find that this right has been yanked away from you by an act of Congress.

        It should be obvious to anyone that these are the real issues here. The Chief Justice used the Jimi Hendrix example off the top of his head to merely illustrate the larger points which remain valid. While closely analyzing the specific Hendrix example under current copyright laws makes for a good instance of trivia, it completely sidesteps and hides from the real debate here.

  4. Also D.H. – If you are so confident in a 7-1 decision with the government winning “handily”, do you have any thoughts as to why the Court granted cert in the first place? After all, there is no circuit split and the government’s position has been upheld on this question thus far.

    • I dunno, Justin. Your guess is as good as mine. Apparently four Justices thought it was worth visiting. http://en.wikipedia.org/wiki/Rule_of_four

      What do you think it means?

      • I think it means that at least four justices didn’t think applying Eldred resolved the issue. Hence the reason why I’d be willing to bet money that your 7-1 prediction will be wrong.

      • Naturally at least four justices thought it was worth visiting. But the crux of my question was to get you to speculate on WHY they felt it was worth visiting – not to challenge you on basic trivia regarding the mechanics of the cert process.

        If Eldred controls in such a straightforward fashion here as you seem to think, don’t you find it odd that they would feel the need to reaffirm that decision so soon on an issue without a circuit split?

        With all do respect, you seem to be avoiding my challenge here.

        • Well, the Tenth Circuit below held that Section 514 was subject to First Amendment scrutiny. Perhaps the Court took the case so they could reverse that holding, consistent with Eldred.

          • Well, the Tenth Circuit below held that Section 514 was subject to First Amendment scrutiny. Perhaps the Court took the case so they could reverse that holding, consistent with Eldred.

            If that is your honest speculation, then I can confirm that you are simply wrong in this instance.

            The holding you refer to came from a 2007 decision which was no longer available for appeal by the time the Supreme Court took the case. The 10th Circuit REMANDED the case back to the District Court, which held that the law was unconstitutional, and then the 10th Circuit REVERSED that decision in 2010, holding: “In sum, Congress acted within its authority under the Copyright Clause in enacting Section 514. Further, Section 514 does not violate plaintiffs’ freedom of speech under the First Amendment because it advances an important governmental interest, and it is not substantially broader than necessary to advance that interest.”

            http://scholar.google.com/scholar_case?case=1636353906906143958&hl=en&as_sdt=2&as_vis=1&oi=scholarr

            It is THAT holding that the Supreme Court granted review on, not the earlier 2007 decision.

            We can naturally continue to debate in good faith how the Supreme Court ought to rule on this issue. But as to the issue of your 7-1 vote prediction and your overly simplistic view of how the Supreme Court is likely to look at this issue, I’m ready to declare victory in this debate. You are clearly letting your ideological position on the underlying issue blind yourself to the complexities of the Court’s motivations (as well as preventing you from taking the strong arguments from Golan as seriously as they ought to be taken). I suspect most objective readers to this site will agree with me on that point when they look over our exchanges here.

          • D.H. isn’t “simply wrong in this instance.” The SCt certified two questions here: whether 514 is constitutional under the Progress Clause and whether it violates the First Amendment. The first question was ruled on in the 2007 opinion at the 10th Circuit. The second would be reviewed de novo, so the SCt very much could decide to review using a different standard than intermediate scrutiny, or even decide, as in Eldred, that independent First Amendment review isn’t warranted.

  5. If that is your honest speculation, then I can confirm that you are simply wrong in this instance.

    The holding you refer to came from a 2007 decision which was no longer available for appeal by the time the Supreme Court took the case. The 10th Circuit REMANDED the case back to the District Court, which held that the law was unconstitutional, and then the 10th Circuit REVERSED that decision in 2010, holding: “In sum, Congress acted within its authority under the Copyright Clause in enacting Section 514. Further, Section 514 does not violate plaintiffs’ freedom of speech under the First Amendment because it advances an important governmental interest, and it is not substantially broader than necessary to advance that interest.”

    http://scholar.google.com/scholar_case?case=1636353906906143958&hl=en&as_sdt=2&as_vis=1&oi=scholarr

    It is THAT holding that the Supreme Court granted review on, not the earlier 2007 decision.

    My bad, Justin. You’re right. I’ve read the decisions below and several of the briefs, but I was mixing it up there.

    We can naturally continue to debate in good faith how the Supreme Court ought to rule on this issue. But as to the issue of your 7-1 vote prediction and your overly simplistic view of how the Supreme Court is likely to look at this issue, I’m ready to declare victory in this debate. You are clearly letting your ideological position on the underlying issue blind yourself to the complexities of the Court’s motivations (as well as preventing you from taking the strong arguments from Golan as seriously as they ought to be taken). I suspect most objective readers to this site will agree with me on that point when they look over our exchanges here.

    We’ll see what happens. Thanks for sharing your thoughts.

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