Tenth Circuit Rejects First Amendment Challenge to U.S. Copyright Law
By Abby Lauer – Edited by Gary Pong
Golan v. Holder, Nos. 09-1234 & 09-1261 (10th Cir., June 21, 2010)
Section 514 of the Uruguay Round Agreements Act (URAA), codified in 17 U.S.C. § 104A, restored the U.S. copyrights of foreign authors who had lost copyright protection for failing to comply with certain formalities required by U.S. law. Plaintiffs challenged Section 514 as a violation of the First Amendment. The U.S. District Court for the District of Colorado upheld plaintiff’s First Amendment challenge by granting their motion for summary judgment. Because the works of these foreign authors had become part of the public domain, the district court reasoned that the First Amendment prohibited the government from restricting public use of the works by reinstating copyright protection.
Reversing the lower court, the Tenth Circuit Court of Appeals held that the URAA does not violate the right to freedom of expression that is protected by the First Amendment. In so holding, the court reasoned that Section 514 of the URAA was narrowly tailored to advance the government’s interest in protecting American copyright holders’ interests abroad. The court deferred to Congress because the legislative body is better equipped to amass data and make important decisions about U.S. copyright law. In addition, the court recognized that the foreign policy implications of the URAA warranted special deference.
Until the early 1990s, many foreign authors lost U.S. copyright protection for their works due to their failure to adhere to certain formalities required by U.S. copyright law, such as registration and notice. Pursuant to the Berne Convention for the Protection of Literary and Artistic Works, an international agreement governing domestic copyright law, Congress eliminated the formalities requirements in 1988. In 1994, Congress passed the URAA in an effort to restore copyright protection to those foreign works that had become part of the public domain due to the author’s failure to comply with formalities.
Filing suit in the U.S. District Court for the District of Colorado, plaintiffs challenged the constitutionality of the URAA as a restriction on free speech. Plaintiffs argued that compliance with the Berne Convention was an insufficiently important purpose to justify restricting public use of the foreign works at issue. More importantly, plaintiffs claimed that the public domain was protected by the First Amendment as a sanctuary from which works could not be removed once they had entered.
In its holding, the Tenth Circuit reasoned that compliance with the Berne Convention was a sufficiently important purpose to justify the restoration of U.S. copyrights to certain foreign works. The URAA was uniquely tailored to comply with international standards for copyright protection, and the law was fashioned as an example for other countries grappling with similar copyright reform. Additionally, the court rejected plaintiffs’ argument that works once part of the public domain cannot be removed: neither the First Amendment nor any other provision of the Constitution “draws such absolute, bright lines around the public domain.” Golan v. Holder at 37. At the end of its opinion, the Tenth Circuit remanded and reversed with instructions for the lower court to grant summary judgment in favor of the government.
The Tenth Circuit’s decision is a major victory for copyright owners. Despite his obvious disappointment with the decision, Anthony Falzone, counsel for plaintiffs, recognizes that Golan v. Holder is a landmark case for U.S. copyright law. Says Falzone: “[This case] shows copyright legislation can be subject to real First Amendment scrutiny.”
Abby Lauer is a 2L at the Harvard Law School.