Convicted Murderer Demands that Wikipedia Remove His Name from Victim’s Article

On November 11, Wired reported that a convicted murderer in Germany has issued a cease-and-desist letter demanding that Wikipedia remove his name from his victim’s Wikipedia article. Wolfgang Werle murdered Bavarian actor Walter Sadlmayr in 1990, and was released on parole in 2007. The letter demands legal fees and compensation for “emotional suffering” caused by the publication of Werle’s name in connection with the murder since his release. German media have already stopped using Werle’s name. Since Wikipedia is an American organization, the Electronic Frontier Foundation describes the issue as “an apparent conflict between the U.S. First Amendment — which protects truthful speech — and German law — which seeks to protect the name and likenesses of private persons from unwanted publicity.”

Senator Criticizes Verizon’s Increased Cancellation Fees as “Anti-Competitive”

On November 10, Ars Technica reported that United States Senator Amy Klobuchar wrote a letter to Verizon, criticizing the company’s announced increase in early cancellation fees for cell phone contracts. Verizon recently announced that, beginning November 15, the fee for cancelling a subsidized smartphone contract would double from a maximum of $175 to $350. Senator Klobuchar, who is a proponent of the Cell Phone Consumer Empowerment Act, called the increase “anti-consumer and anti-competitive.” Senator Klobuchar also wrote a letter to the FCC, asking for an investigation into the competitive and economic impact of the decision on consumers. Verizon noted that consumers can avoid the early termination fees by purchasing smartphones without Verizon subsidies.

United Kingdom Proposes Mandatory Surveillance of Social Networks, Chat Rooms, and Video Games

On November 9, the BBC reported the United Kingdom government has proposed that communication service providers retain records from a variety of new sources including social networks, chat rooms and online games. The move is designed to monitor the parties to and date of each online communication, but not the “actual contents of what was said.” Specific legislation has not yet been introduced, but the proposal includes compensation for the communications providers that must implement the technically challenging requirements. The government has insisted that most concerns about the proposal have only to do with the “detail of what would be done with the information.”

By Davis Doherty – Edited by Jad Mills
Assn. for Molecular Pathology, et al. v. USPTO, et al., Case no. 09-CV-4514 (S.D.N.Y. Nov. 2, 2009)
Slip Opinion (hosted by Patent Baristas)

The United States District Court for the Southern District of New York denied defendants’ motion to dismiss plaintiffs’ claim that patents on a human gene violate the First Amendment and Article I of the Constitution for jurisdictional issues, lack of standing, and failure to state a claim.

District Judge Sweet found that the plaintiffs’ constitutional claims challenging the validity of Myriad Genetics’ gene patents provided subject matter jurisdiction and standing to sue the United States Patent and Trademark Office because of the lack of available statutory remedies.  The plaintiffs claim that Myriad’s patents are inappropriate because they cover “products of nature”, and seek invalidation of the patents under the Constitution of the United States. Judge Sweet held that these claims met the stricter pleading standards recently announced in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).  In so holding, the court noted the “novel circumstances presented by this action against the USPTO”: The Patent and Trade Office is generally immune from suit due to the availability of statutory remedies for claims arising from patents. Such remedies do not provide for constitutional claims.

Ars Technica provides a brief overview of the case.  The ACLU, who represents the plaintiffs, writes in support of the decision.  Patent Baristas put forward a more skeptical view of the plaintiffs’ prospects. Patent Docs features a longer analysis of the decision.

Defendant Myriad Genetics owns interests in several patents on the human genes BRCA1 and BRCA2, both of which can indicate an increased risk of breast or ovarian cancer.  Myriad can thus control the availability of genetic testing for the BRCA1 and BRCA2 sequences, a process that can cost as much as $3000.  The patents also allow Myriad to restrict other laboratories’ research on the BRCA sequences.  The numerous plaintiffs include researchers, testing laboratories, medical societies, advocacy organizations, and cancer patients with various interests in seeing the invalidation of the patents-at-issue.

Arguing on behalf of the plaintiffs, the ACLU and the Public Patent Foundation claim that the patents violate the First Amendment’s protection of freedom of thought and Article I, section 8, clause 8’s instruction that Congress “promote the Progress of Science and useful Arts”.  In holding that the plaintiffs have standing to sue and that subject matter jurisdiction exists, the court relied on the fact that these constitutional claims fall outside the remedies provided by the Patent Act.  In holding the pleading sufficient, the court reasoned that the First Amendment claim is supported by the plaintiffs’ argument that the BRCA patents cover a product of nature, and the Article I claim is supported by the contention that the patent has inhibited research on the genes.

This suit is significant for both procedural and public policy reasons.  Using constitutional claims in an attempt to invalidate patents is a novel approach, and is probably the only approach that would allow the plaintiffs to include the USPTO as a defendant. A victory for the plaintiffs could result in an increased availability of genetic testing for breast cancer risks.  More broadly, if the plaintiffs present a successful challenge to the USPTO’s general policy of granting gene patents, the validity of patents on an estimated 20% of the human genome would be called into question.

By Ian B. Brooks – Edited by Alissa Del Riego
United States v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009)
Opinion

The Ninth Circuit has affirmed the District Court for the District of Arizona, which had convicted and sentenced defendants Jeffery Kilbride and James Schaffer of transporting obscene materials for sale.

The Ninth Circuit held that a national community standard “must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” United States v. Kilbride, No. 07-10528 at 14492 (9th Cir. Oct. 28, 2009).  Defendant Internet spammers Kilbride and Schaffer had appealed their convictions for interstate transportation for sale of obscene material in violation of 18 U.S.C. §§ 1462 and 1465. Judge Fletcher of the 9th Circuit examined the opinions of the fragmented Justices in the Supreme Court’s opinion in Ashcroft v. ACLU for guidance in reaching his conclusion that a national community standard would not pose the constitutional concerns that a local community standard would. Ashcroft v. ACLU, 535 U.S. 564 (2002)

Eric Goldman provides an overview of the case. Orin Kerr, of The Volokh Conspiracy, criticizes the Ninth Circuit’s reasoning in the case. Kerr argues that the Ninth Circuit should have followed the precedent set in Miller v. California, 413 U.S. 15 (1973), wherein local “contemporary community standards” were applied.

Although the Ninth Circuit agreed with the defendants’ assertion that the district court erred in its jury instruction on the obscenity community standard, the court found that it was not a plain error and did not require reversal. The court reached its holding based on  Ashcroft, which found the Child Online Protection Act (COPA) unconstitutional because it was based partly on community standards to identify material that was harmful to children.

Defendants Kilbride and Schaffer operated a spamming business through Ganymede Marketing, a Mauritian company with servers operating in the Netherlands. Two images from the defendants’ sexually explicit emails lead to the obscenity charges. Kilbride and Schaffer were sentenced to 78 and 63 months respectively. On appeal, defendants challenged the District Court’s application of a contemporary community standard to email communications under Hamling v. United States, 418 U.S. 87 (1974), because it would subject the defendants to the least tolerant community standard in the country. The government challenged defendants’ argument by citing a prior case in the district, United States v. Dhingra, 371 F.3d 557 (9th Cir. 2004), in which the Ninth Circuit did not foreclose a local community standard where a crime occurred over the Internet. The Ninth Circuit distinguished Dhingra noting that it does not apply to a federal law that regulates speech.

Rather than applying Hamling, the Ninth Circuit followed Ashcroft. The Ashcroft case addressed the constitutionality of the COPA, which regulated material harmful to minors. The opinion of the Court in Ashcroft did not find it significant that Internet communications were not focused to a particular area and rejected the national community standard approach. The Ninth Circuit reasoned that the view of the Court was contrary to defendants’ argument but noted that the opinion was not joined by a majority of the court.The Ninth Circuit found support for its conclusion that a national obscenity standard should be applied by examining the multiple concurrences and dissent of the other Justices in Ashcroft. Judge Fletcher noted that six Justices raised constitutional concerns over the application of a local community standard for defining obscenity in Internet cases.

This case represents a departure from the local community standard that had been applied following Miller and goes against the reasoning of the opinion of the Court in Ashcroft, but applies what some believe to be the practical reasoning necessary for balancing Internet communications, free speech, and obscenity concerns. Looking forward, OneNewsNow provides a brief opinion on how the Ninth Circuit’s decision may impact defenses raised by attorneys.

Gamer Appeals Ban from Sony’s Playstation 3 Network

On September 22, 2009, the United States District Court for the Northern District of California dismissed Erik Estavillo’s lawsuit against Sony. Fox40.com reports that Estavillo was banned from Sony’s Playstation 3 Network after allegedly uttering “racial and homophobic slurs to other online gamers.” Estavillo alleged that his freedom of expression was abridged, and likened Sony’s network to a company town. The district court dismissed Estavillo’s First Amendment claims, stating: “Sony’s Network is not similar to a company town. The Network does not serve a substantial portion of a municipality’s functions, but rather serves solely as a forum for people to interact subject to specific contractual terms.” Estavillo recently appealed the dismissal to the Ninth Circuit and has also filed a second lawsuit against Sony.

German Government Pledges to Protect Online Journalism in Germany with a “New Kind of Copyright”

On October 29, 2009, the New York Times reported that Germany’s governing coalition “has pledged to create a new kind of copyright to protect online journalism” with the goal of “level[ing] the playing field with Internet companies like Google.” German publishers fear that Google may be “exploiting their content to build lucrative businesses without sharing the rewards.” Google aggregates news from many news outlets on its Google News website; however, Google News operates in Europe without collecting any advertising revenue. Although “[d]etails of how the proposal would work have not been spelled out,” analysts believes that the new copyright scheme may allow online journalists to “claim royalties for the use of their content by Google or other online ‘aggregators’ of news.” In support of the new scheme, counsel for the German Newspaper Publishers Association argues that there is “no fundamental right to information for free on the Internet.”

United Kingdom to Crack Down on Online Piracy; Could Lead to Outright Disconnection of Pirates

On October 28, 2009, the BBC reported on new legislation that will come into force in the United Kingdom in April 2010. Although “the details of it would need to be hammered out at European level,” the legislation will impose bandwidth restriction on suspected pirates. If necessary, more restrictions will be introduced in the spring of 2011 that could completely disconnect the suspected pirates from the Internet. The legislation already faces challenge from ISP TalkTalk, which has created a “Don’t Disconnect Us” campaign and threatened litigation. Although the legislation is designed to protect the United Kingdom’s creative content industries, legislators emphasize that the long-term solution is for “the industry to educate users and to offer new and cheaper ways to download content.”

Back to Drawing Board for Pa. State Legislature in Protecting Trademark Holders
By Brittany Blueitt – Edited by Stephanie Weiner

Commonwealth of Pennsylvania v. Omar, No. J-162A-B-2008 (Pa. Oct. 5, 2009)
Majority Opinion (Baer, J.)
Concurring Opinion (Castille, J.)
Dissenting Opinion (Eakin, J.)
Dissenting Opinion (Greenspan, J.)

On October 5, the Supreme Court of Pennsylvania affirmed two consolidated Centre County Court of Common Pleas decisions dismissing criminal trademark counterfeiting charges on the ground that Pennsylvania’s Trademark Counterfeiting Statute, 18 Pa. Cons. Stat. § 4119, is unconstitutionally vague and overbroad.  The court held that the statute is unconstitutional because it criminalizes a substantial amount of speech protected by the First Amendment of the United States Constitution.  Commonwealth v. Omar, No. J-162A-B-2008, slip op. at 10 (Pa. Oct. 5, 2009).

IP Spotlight provides an overview of the case. CNBC features an extended analysis of the decision.  The Madisonian declares the decision overly formalistic.

The Centre County Court of Common Pleas had previously held the statute unconstitutional in Commonwealth v. Garrity, No.1999-2264 (Pa. March 27, 2000), on the ground it punishes a substantial amount of constitutionally protected speech. The Trademark Counterfeiting Statute criminalizes conduct by a person who “knowingly manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any items or services bearing or identified by a counterfeit mark.”  The statute defines “counterfeit mark” broadly to include any “unauthorized reproduction or copy of intellectual property,” and defines “intellectual property” as “any trademark, service mark, trade name, label, term, device, design or word adopted or used by a person to identify that person’s goods or services.” 18 Pa. Cons. Stat. § 4119.

In both Commonwealth v. Omar and Commonwealth v. O’Connor, the trial court dismissed charges brought against the defendants under the Trademark Counterfeiting Statute for possession of counterfeit Nike sneakers and distribution of hats bearing the Penn State logo, respectively, based on the Garrity decision.  The Commonwealth appealed both dismissals, which were consolidated for decision by the Pennsylvania Supreme Court.

Justice Baer, writing for the Supreme Court, reasoned that a statute is unconstitutionally overbroad where it punishes a substantial amount of lawful, constitutionally protected activity as well as illegal activity. The court refused to narrow the statute, finding that its words are “clear and free from all ambiguity and thus “the letter of it is not to be disregarded under the pretext of pursuing its spirit.”  Taking particular issue with the prohibition of any “use” of such a mark, the court concluded that the statute unconstitutionally prohibits protected speech, such as the use of the words “Nike” or “Penn State” on a protest sign, or even their use in the court’s own opinion.

Justices Eakin and Greenspan wrote separate dissenting opinions. Justice Greenspan argued that the court “has an obligation to interpret a statute in a constitutional manner wherever possible.” Finding the statute to be ambiguous, the dissent urged that the court must consider not only the plain language of the statute, but also the legislative intent underlying it. The intent of the Statute is to “prevent individuals from deceptively utilizing a recognized mark in the context of a sale or distribution” and not to criminalize “the mere use of a recognized word or phrase.” Finally, Justice Greenspan noted that both Omar and O’Connor had illegally violated Nike and Penn State’s trademarks and to overturn their convictions based on the overbreadth of the Statute “has an aura of injustice.”

Chief Justice Castille concurred in the opinion, noting that the primary divide between the majority and dissenting opinions was that both Omar and O’Connor were engaged in the precise illegal activity that the Statute was designed to prohibit. The Chief Justice noted, however, that the United States Supreme Court has directed that, in the First Amendment arena, individuals may assert a facial attack against a statute without demonstrating that his or her own conduct was protected.

By Anthony Kammer – Edited by Evelyn Breithaupt
Solers, Inc. v. Doe, No. 07-CV-159 (D.C. Cir. Aug. 13, 2009)
Opinion

On August 13, 2009, the D.C. Court of Appeals remanded Solers, Inc.’s case against an anonymous speaker and provided the lower court with a new standard for determining when an anonymous speaker’s identity may be revealed.

The Volokh Conspiracy notes that although the court limits its decision to defamation claims, the court’s logic would apply to many other forms of anonymous speech. The Citizen Media Law Project points out that this case is factually distinct from many online defamation suits because the comments at issue were not posted on a blog or other public platform. Newsroomlawblog covers the recent decision and has earlier reported that there is a growing trend for courts to protect anonymous speakers unless the plaintiff meets some elevated standard. Ars Technica and Exclusive Rights provide additional commentary.

The D.C. appellate court adopted the following test:

When presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an anonymous defendant, the court should:

(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim,

(2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served,

(3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash,

(4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and

(5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.

The court stated that it “[did] not require a separate balancing test at the end of the analysis,” nor “a showing that the plaintiff has exhausted alternative sources for learning the information.”

The anti-piracy division of the Software & Information Industry Association (“SIIA”) received an anonymous online tip in March 2005 that Solers, Inc., a defense industry software company, was using pirated software and conducting activities in violation of copyright. The SIIA then ordered that Solers conduct an internal audit to investigate the allegation or face litigation for copyright infringement. Solers conducted the audit and sent a report stating that they found no infringements, and the SIIA closed its file on Solers.

Solers subsequently filed a complaint against the anonymous tipster, alleging defamation and tortious interference with business opportunities. Solers requested the name of the source from SIIA, who refused based on a “long standing policy of keeping the identity of [its] sources anonymous.” Solers then issued a subpoena to the SIIA to turn over the name, and the SIIA refused and moved to quash the subpoena. A D.C. superior court ruled that the SIIA did not have to turn over the name, noting that because the case would not survive a motion to dismiss, the rights of the anonymous tipster outweighed Solers’ interest in his identity.

In reviewing this ruling, the Court of Appeals stated that anonymous online speech was entitled to First Amendment protection but that defamatory speech was not. The Court then conducted a thorough review of discovery standards in defamation suits seeking the identity of anonymous speakers. Some states, such as Virginia, require only a good faith basis for a plaintiff’s claims for the court to compel a third party to turn over the name of an anonymous speaker. New Jersey courts have held that before the identity is revealed the plaintiff must support each of its claims with evidence. The D.C. court here declined to impose a test balancing the First Amendment rights against the plaintiff’s allegations and instead opted for the heightened standard quoted above, requiring some merit to the allegations and a determination that the anonymous speaker’s identity is important for the case to proceed.

]]> http://jolt.law.harvard.edu/digest/first-amendment/solers-inc-v-doe/feed 0 http://jolt.law.harvard.edu/digest/internet/too-much-media-llc-v-hale http://jolt.law.harvard.edu/digest/internet/too-much-media-llc-v-hale#comments Mon, 13 Jul 2009 15:17:20 +0000 DeeAccount http://jolt.law.harvard.edu/digest/?p=161 Blogger Status Fails to Provide Journalistic Protection under N.J. Shield Law

By Ian B. Brooks – Edited by Amanda Rice
Too Much Media, LLC v. Hale, Case No. MON-L-2736-08, (N.J. Super. Ct. Law Div. June 30, 2009) Slip Opinion

The Monmouth County Superior Court of New Jersey held that the Defendant, blogger Shellee Hale, was not entitled to the protections of a newsperson under New Jersey’s Shield Law. Although Hale claimed that her posts on an Internet message board were intended to inform the public and spur debate on Too Much Media’s alleged activities, Judge Locascio focused on Hale’s credibility and whether her posting resembled traditional news media. The court noted that although the Shield Law in New Jersey was “one of the nation’s broadest,” Hale “presented no credible evidence . . . that she ever worked for any ‘newspapers, magazines, press associations, news agencies or wire services, radio or television.’” In reaching this conclusion, Judge Locascio gave no weight to Hale’s being a blogger or her claims of having published articles in a newspaper and trade journal because she failed to name the publications and lied in her certification to the court, which Judge Locasio labeled a “sham affidavit.”

The Citizen Media Law Project provides an overview of the case. The New Jersey Law Journal also summarizes the case and includes comments from Too Much Media attorney, Joel Kreizman.

The Defendant, Hale, who operated websites offering her life coaching services and maintained a blog, had no background in journalism or connection with any journalist organization. She claimed that she had been investigating criminal activity in the online adult entertainment industry and started a website in 2007 to publish the results of her investigation.  She never posted anything on her site, but communicated her views on porn industry message boards. The plaintiffs, Too Much Media, LLC, manufacture NATS, software used by websites to manage pay-per-click advertising commissions. After news reports that hackers had broken into the NATS database and obtained information about subscribers to various adult websites, Hale posted allegedly defamatory statements on the website Oprano (the self-proclaimed “Wall Street Journal of Porn”) about Too Much Media and its principals.

Despite Hale’s claims that her posting was intended to inform the public of Too Much Media’s improper business actions, the court ruled that her postings were not similar enough to a traditional news media outlet to allow protection under the Shield Law. The Shield Law protects newspersons from having to disclose their sources in legal proceedings. The court stated that message board postings require no fact-checking or poster credentials. The court noted that extending the protections provided to newspersons to bloggers like Hale “would mean anyone with an email address, with no connection to any legitimate news publication, could post anything on the internet and hide behind the Shield Law’s protections.”

This case represents the first time in New Jersey that a blogger has attempted to shield herself under the Shield Law to avoid revealing her sources after making allegedly defamatory comments on an Internet message board. While it seems unlikely that this holding will deny protection to all bloggers, the Daily Record suggests that bloggers who do not have significant ties to news organizations will not be protected by the New Jersey Shield Law. On the other hand, Jonathan Hart stated to the New Jersey Law Journal that the holding of this case is limited to its specific facts and will not extend to other bloggers.

By Debbie Rosenbaum – Edited By Amanda Rice
Julie Doe II et al. v. MySpace Inc., Case No. B205643, (Cal. Ct. App. June 30, 2009)
Opinion

On June 30, the Second District Court of Appeals in Los Angeles affirmed the judgment of the lower court and held that online social networks and other websites cannot be held liable for a sexual assault on a minor that stems from an online meeting. The court rejected claims made by the parents of four girls who were between thirteen and fifteen years old when they created MySpace profiles. The court followed Fifth Circuit precedent, Doe I v. Myspace, which JOLT Digest’s Anna Volftsun previously summarized in May 2008.

The Court of Appeals held that girls who are sexually assaulted by men they first contact on MySpace cannot seek damages from the social-networking website, which is protected from liability by Section 230 of the Communications Decency Act. “[T]hey want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity-to restrict or make available certain material-is expressly covered by section 230,” wrote the court.

Ars Technica provides an overview of the case. CNET and Reuters also summarize the main points of the case. Eric Goldman offers a nice in-depth analysis of the case and emphasizes the defense’s use of Roomates.com precedent.

The plaintiffs, four underage girls (referred to as Julie Does) and their parents, sued MySpace for gross negligence and strict product liability after they were sexually assaulted by older men whom they met through the website. The plaintiffs alleged that MySpace had failed to employ adequate age verification measures or keep profiles on a “private” setting.

Despite the unfortunate circumstances in which these events took place, the court found that MySpace was protected from liability by Section 230 of the Communications Decency Act. Section 230 is the same law that has protected Craigslist from being held responsible for discriminatory housing ads and other websites from being held liable for defamatory content created by third parties. The court’s opinion distinguishes the Roommates.com case (hosted by EFF) (which held that requiring users to answer questions that encouraged violation of the Fair Housing Act was not protected by Section 230) by noting that the questions that MySpace asks its users are neither required nor themselves illegal.

This decision was welcomed by free speech advocates, and is particularly salient in light of the Lori Drew reversal, covered by Flash Digest here, which limited a plaintiff’s right to seek relief for real life harm caused from online actions.

Google Sued for Use of Trademarked Terms in Adwords Program

A class action was filed against Google on May 11, 2009 in federal court in Texas challenging its use of trademarked terms in its adwords program. The New York Times covered the case and surrounding issues. Ars Technica analyzes Google’s new AdWords policy.

ACLU Challenges Constitutionality of Gene Patents

The ACLU filed suit in the Southern District of New York challenging the patenting of genes and genetic tests as unconstitutional. The New York Times reported on the suit and the ACLU’s plaintiff. Patently-O provides further analysis and links to the ACLU blog and the complaint.

Golan v. Holder
D. of Colorado, April 3, 2009, No. 01-cv-01854-LTB
Memorandum Opinion (hosted by the Stanford Fair Use Project)

On April 3rd, the United States District Court for the District of Colorado granted plaintiff’s motion for summary judgment, upholding the First Amendment challenge to Section 514 of the Uruguay Round Agreements Act (URAA), codified in 17 U.S.C. §104A. The case was on remand from Golan v. Gonzales (10th Cir.), which instructed the District Court to evaluate the First Amendment implications of restoration.  Judge Lewis T. Babcock held that §104A, which restored copyright in certain foreign works that had previously fallen into the public domain, cannot survive First Amendment scrutiny.

The URAA restored the US copyrights of foreign authors whose works entered the public domain for any reason other than the expiration of a copyright term in the work’s country of origin. The Tenth Circuit determined that the law “altered the traditional contours of copyright protection” by restoring copyrights in works of foreign origin that were previously in the public domain in the United States and therefore the law was subject to First Amendment scrutiny. The court held that once the works entered the public domain, the plaintiffs acquired a vested interest in the speech. On remand, the District Court – which had previously upheld § 104A – held that this provision of the URAA violates the First Amendment insofar as it suppresses parties’ rights to continue using works they had exploited when those works were in the public domain.

According to Anthony Falzone of the Stanford Fair Use Project, which is litigating the dispute, this is “the first time a court has held any part of the Copyright Act violates the First Amendment.” The Technology & Marketing Law Blog provides an overview of the case.

Plaintiffs, who were artists or businesses that use works in the public domain, would be forced to either pay royalties or cease using the works entirely if copyrights are restored. They argued that removing these works from the public domain violates their First Amendment rights. The court determined that plaintiffs had, subject to constitutionally permissible restraints, a non-exclusive right to “unrestrained artistic use of these works” that was protected by the First Amendment.

The government defended the statute by arguing that restoration is required by Article 18 of the Berne Convention for the Protection of Literary and Artistic Works, which the US joined in 1988. The court held that although the treaty requires the restoration of copyrights to foreign authors, it allows individual countries to determine how to implement its protections, particularly with regard to “reliance parties” who have a vested interest in works that had become part of the public domain. The court found the government’s fears of retaliation by other countries for failing to restore the expired copyrights to be speculative and held that the significant First Amendment concerns outweighed any such potential fallout.

The parties agreed that the provision was a content-neutral regulation of speech, meaning it would be upheld if it advanced an important governmental interest and did not burden substantially more speech than necessary to further those interests (as opposed to the stricter test for content-specific regulations). The court acknowledged that compliance with an international treaty was an important government interest. However, the court found that the provision was “substantially broader than necessary” to serve that interest, and thus violated the plaintiffs’ First Amendment reliance interest on the public domain works.