On September 5, the 10th Circuit handed down its opinion in Golan v. Gonzales, No. 05-1259 (10th Cir. Sept. 4, 2007). The court held that the implementation of the Berne Convention on Copyrights (the Uruguay Round Agreements Act § 514) may violate the 1st Amendment by removing some materials--books, films, and songs, mostly--from the public domain and placing them under copyright protection. Generally, the court's ruling would expand the scope of 1st Amendment review when Congress acts to change copyright law. The court reasoned that if Congress alters the "traditional contours of copyright protection," then its actions should be subject to strict or intermediate scrutiny. See Slip Op. 05-1259 at 16. The 10th Circuit concluded that URAA § 514 did alter these "traditional contours" by deviating from the "bedrock principle of copyright law that works in the public domain remain in the public domain." Id. at 16-17. It remanded to the district court to determine whether § 514 was a content-based or content-neutral restriction on speech and to apply the necessary 1st Amendment review.
From the free culture side of the copyright debate, Jack Balkin celebrates the ruling but cautions that its overreliance on Eldred v. Ashcroft's "traditional contours of copyright law" test might justify expansions of copyright law if it can be shown that new copyright laws "create differences only in degree rather than kind" and "are part of a gradual historical progression of increased copyright protection." Larry Lessig weighs in on Golan's relevance to his petition to the Supreme Court to grant review of Kahle v. Gonzales, a recent 9th Circuit ruling that looked less favorably on a similar constitutional challenge to copyright law. William Patry is far less enthusiastic, calling the ruling "the first vindication of an approach argued by Larry Lessig and colleagues that I had thought made no sense at all."