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The Supreme Court Asked to Rule on the Constitutionality of “Restored” Copyright Protection
By Andrew Goodwin – Edited by Cary Mayberger

Petition for Writ of Certiorari, Golan v. Holder (U.S. 2010)
Petition hosted by The Center for Internet and Society at Stanford Law School

In June 2010, the United States Circuit Court for the Tenth Circuit held that § 514 of the Uruguay Round Agreements Act (“URAA”), codified in 17 U.S.C. §§ 104(A) and 109(a), did not violate the First Amendment rights of Golan et al. (the “petitioners”). See Golan v. Holder, 609 F.3d 1076 (2010). On October 20, 2010, the petitioners, a group of “orchestra conductors, educators, performers, film archivists, and motion picture distributors,” filed a petition for writ of certiorari to the Supreme Court. The respondents in this writ are Eric Holder and Marybeth Peters, serving in their respective capacities as Attorney General and Register of Copyrights in the Copyright Office of the United States.

The origins of this case trace back to Golan v. Gonzalez, 2005 WL 2064402 (D. Colo. Aug. 24, 2005), a 2005 case in the U.S. District Court for the District of Colorado. In the original Golan case, the district court dismissed all of the plaintiffs’ claims, including the claim that § 514 of the URAA was unconstitutional because it violated the Copyright Clause and the First Amendment. The plaintiffs appealed to the Tenth Circuit, which in 2007 reversed the district court’s dismissal of the plaintiffs’ First Amendment claim while affirming the district court’s dismissal of the Copyright Clause claim. The case was then remanded for analysis of the First Amendment claim. Applying intermediate scrutiny, the district court granted the plaintiff’s motion for summary judgment in 2009. In 2010, a separate panel on the Tenth Circuit heard the government’s appeal, and reversed the district court’s judgment.

JOLT Digest reported on the Tenth Circuit’s original ruling in Golan, the district court’s subsequent decision, and the Tenth Circuit’s latest decisionThe 1709 Blog provides an overview of the writ.

Petitioners relied on the public domain to create their own works.  The URAA restored copyright to some of the public domain works used by petitioners.  In their petition for writ of certiorari, the petitioners ask the Supreme Court to determine whether it is constitutional for Congress to remove works from the public domain and then later restore the copyright in those works. As in the earlier cases, petitioners argue that § 514 of the URAA violates the Copyright Clause of the U.S. Constitution (both the “limited Times” restriction and the specific purpose of the clause, the “Progress of Science and useful Arts”) as well as the First Amendment. In regards to the First Amendment claim, petitioners argue that they invoked speech rights that are “near the core” of the First Amendment by using public domain works (before they were restored to a copyright protected status by § 514). Petitioners claim any restriction of these speech rights impedes future creativity and is unconstitutional in the absence of “public benefits”.

To support their opposition to the Tenth Circuit’s 2010 decision, petitioners cite the district court’s 2009 decision and previous Supreme Court decisions, such as Eldred v. Ashcroft. Petitioners highlight the government’s argument in Eldred that any removal of works from the public domain by Congress would equate to crossing a bright line.

If the Supreme Court grants a writ of certiorari, this case will prove to be significant for those who utilize works in the public domain. Historically, works that have been placed in the public domain have remained there permanently without restrictions. As Anthony Falzone, counsel for the petitioners, explains, “[b]y restoring copyrights in tens of thousands of works that had been in the Public Domain for decades, the URAA represents a radical departure from [this principle], and it affects a broad array of critically important public speech rights.” The Supreme Court’s ruling could answer important questions about whether Congress has the power to remove works from the public domain, and when such a power could be properly exercised.

Andrew Goodwin is a 1L at the Harvard Law School.

Posted On Oct - 26 - 2010 Comments Off

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