Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue

from the fingers-crossed-that-they-get-this-right dept

We've been covering a very important copyright case -- Golan vs. Holder -- which involves a key question about copyright law. While the case may seem narrowly focused, it has much larger implications. As we've discussed, it's the third case in a trio of cases that involved Larry Lessig, concerning the ability of the US to retroactively change copyright law. The first two, Eldred and Kahle, both ended up in losses, but they did get the court to establish some boundaries for when and how the US could retroactively change copyright law. As a very quick review, Eldred argued that the ongoing extension of copyright violated the "limited" part of the copyright clause in the Constitution. The Supreme Court eventually said that this was Congress's call, and noted that it wouldn't review copyright extension on First Amendment grounds unless the change in the law went beyond the "traditional contours of copyright protection." Of course, many of us believe that an automatic copyright that lasts multiple lifetimes goes way beyond the traditional contours of copyright protection that kicked off with very limited protections, requiring registration and only lasting for a short period of time. But what do we know?

The second case, challenging the registration/automatic question, pointed out that under the Eldred ruling, the 1976 Copyright Act should be reviewed for First Amendment issues, since it certainly changed the traditional contours by switching copyright from "opt-in" to "opt-out." Actually, it didn't even switch it to opt-out, as there's really no way to officially opt-out of copyright coverage. That seems like a massive change to the traditional contours of copyright law. However, the appeals court got confused and simply assumed that what was being argued was the same issues in Eldred.

The third case is this case, the Golan case -- which noted that due to a treaty agreement, the US took some foreign books that had been in the public domain, and retroactively put them under copyright protection, putting some sellers of those books at risk for infringement. Two years ago, we were a bit surprised to find a court agreed, and said that this part of the Copyright Act was unconstitutional. Basically, the court suggested that Congress could have written the law in such a way that left those works in the public domain. Last summer, the 10th Circuit appeals court reversed the lower court, and basically said it was okay to take these works out of the public domain, and that there was no First Amendment issue in doing so, because copyright law "addresses a substantial or important governmental interest." For a variety of reasons, I found this reasoning to be quite problematic.

Golan appealed, and it was just announced that the Supreme Court will actually take the case and will review the First Amendment issue (along with the Progress Clause issue). While I wouldn't be surprised if the Court made a ruling that flies in the face of reason, as it did with Eldred, perhaps we can be hopeful that some on the court will finally recognize how the massive expansion of copyright over the last century really does raise serious First Amendment issues. This is an important case to follow, even if it seems likely that the Supreme Court will make another bad ruling. And, even though it may be a narrow issue, getting the Supreme Court to actually look at some of the issues when the First Amendment comes into conflict with copyright is still important.

Filed Under: copyright, golan, public domain, supreme court


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  1. icon
    Justin Levine (profile), 7 Mar 2011 @ 10:59pm

    Re: Re: Re:

    Some of the works at issue include:

    H.G. Wells’ Things to Come
    Fritz Lang’s Metropolis
    The musical compilations of Igor Fydorovich Stravinsky

    The harm to free speech rights in taking even a small amount of works out of the public domain is far more significant than you seem to imply. You seem to ignore the domino effect that will occur with regards to derivative works that would otherwise be given separate copyright protections.

    For instance, let's say I create a remake of Fritz Lang's film Metropolis while Lang's film was in the public domain. I spend the sums to hire new actors, set decorators, camera crew etc. On top of that, I create both a new novelization and stage play based on my film (which again, is all based on the original Fritz Lang Metropolis).

    Since Metropolis is in the public domain, I don't need to ask anyone's permission or pay off any estate to create my new works based on the original work.

    After creating these 3 new works (a remake of the film, a novelization and a stage play), Mr. X licenses the rights from me in order to create a line of T-shirts based on my new works (which are given separate copyright protection, since they contain their own original and creative elements on top of the public domain film).

    After spending my time, effort (and perhaps money) to create these new works, the original Fritz Lang film is suddenly yanked out of the public domain and given copyright protection again. The Fritz Lang estate then issues a cease and desist letter to both me and Mr. X, claiming (quite correctly) that all of these new works now violate the copyright of the original Fritz Lang work.

    What should the response be? The best case scenario is that I and Mr. X now must pay large (perhaps crippling) fees to the Lang estate in order to distribute our newly created speech. The worst case scenario is that the Lang estate doesn't care how much we pay them, they want these new works permanently enjoined and destroyed.

    Either way, the ramifications towards free speech rights are staggering.

    Since copyright law no longer requires people to register works in order to get copyright protection, there is no way to know how many derivative works have already been created in the popular culture that were based on public domain works that were yanked back into copyright. The end result is a domino effect that ends up blocking new creative works that were made under the promise of a stable public domain.

    So this all affects far more than your misguided claim that "the moving from public domain to copyright for a small number of works [won't] significantly diminish anyone's rights..."

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