Golan Appealed To The Supreme Court; Important Case About The Extent Of Copyright & The Public Domain
from the would-be-nice... dept
We’ve been covering the Golan case for a while now. It’s an important case in determining the contours of copyright and the public domain. Many details of the case involve a lot of legal specifics, but the general point was to question whether or not taking works out of the public domain, and putting them under copyright violated the First Amendment. Now, there’s a lot more to it than that, and it would take way too much time to get into all the details. But, basically, due to a trade agreement, certain works that had been considered in the public domain in the US, were put back under copyright. Whether or not that, alone, is that big of a deal wasn’t the key point. Realistically, the point of the case was to get a court to finally admit that there were ways in which Congress could change copyright law that violated the First Amendment.
This had been the key point raised in the famed Eldred case, in which the Supreme Court concluded that copyright extension to keep works out of the public domain did not violate the First Amendment basically because Congress said so (again, for the angry lawyers, I am simplifying to keep this short). However, the court did leave a tiny opening, by saying that if Congress “altered the traditional contours of copyright protection,” then it could require First Amendment scrutiny. Of course, to some of us, the fact that copyright now automatically covers all sorts of new works immediately upon creation — and that it lasts the author’s life plus another 70 years, as compared to original copyright laws, which only covered a small sub-section of content, required registration for coverage and only lasted 14 years (with the ability to renew for another 14) — certainly seems like Congress altering the traditional contours of copyright protection, but what do we know?
So, here’s where the Golan case got interesting. It’s bounced back and forth a few times between the district court and the appeals court. In 2007, the appeals court went through a long (and, admittedly, tortured) explanation for how taking works out of the public domain certainly could “alter the traditional contours of copyright protection,” sending the case back to the lower court to consider whether or not this potential contour violation could be a First amendment problem. It took some time, but early last year, the court said that, yes, this move did appear to violate the First Amendment. But… earlier this year, the appeals court reversed the lower court’s ruling (despite it sending it back to the district court in the first place), saying that the government had plenty of good reasons to pull works from the pubic domain, and thus, there was no First Amendment violation. In some ways, it appeared to suggest that so long as there was a “substantial or important government interest,” the First Amendment issue was a non-starter (which seems to go against the very concept of the First Amendment).
So…. why is this all important? Well, one of the problems with the Eldred ruling is that no one knows what within Congressional changes to copyright law actually does “alter the contours,” and too many lawyers seem to believe that the Eldred ruling means that whatever Congress wants to do to copyright laws is okay. Having a precedent that shows that, no, some of these changes really do alter the contours and that, yes, this is a First Amendment violation, can hopefully create at least some sort of standard by which the courts actually look at copyright law changes to see if they violate the First Amendment, rather than just saying “if Congress did it, it’s okay.”
While it’s no surprise, then, it is worth noting that the case has officially been appealed to the Supreme Court. As Anthony Falzone (who’s heavily involved in the case) notes:
In our view, these questions could not be more important. The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the Public Domain, it belongs to the public, and remains the property of the public — free for anyone to use for any purpose. That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property “monopoly” the Framers authorized. By restoring copyrights in tens of thousands of works that had been in the Public Domain for decades, the URAA represents a radical departure from these basic principles, and it affects a broad array of critically important public speech rights. The Tenth Circuit’s decisions in this case suppress those rights, and threaten the integrity of the Public Domain itself.