Copyright: Supreme Court to Hear Constitutional Challenge to Copyright Restoration

Golan v. Holder (Supreme Court 2011) (materials from SCOTUS blog)

Symphony Conductor Lawrence Golan along with a group of supporters have successfully petitioned the Supreme Court for a writ of certiorari in their public domain copyright case. The lawsuit arose after Congress enacted the Uruguay Round Agreements Act (URAA) of 1994. Section 514 of URAA restored the copyright term for works created by foreign authors who had lost their rights due to some reason other than expiration of the copyright term. Most frequently, the authors had either failed to renew their copyrights or failed to include a notice of copyright on the works. According to the petitioners, Section 514 restored copyright protection to thousands of works that had previously been in the public domain, including symphonies by Stravinski, books by C.S. Lewis, films by Federico Fellini, and artwork by Pablo Picasso. These works had been previously recognized as public domain in the US and had been used extensively by the petitioners.

The petition for certiorari asks two questions:

  1. Whether the “Progress Clause” of the US Constitution prohibits Congress from removing works from the public domain?
  2. Whether the removal of those works from the public domain violates the First Amendment of the United States Constitution?

The District Court (Colorado) held the law unconstitutional on First Amendment grounds at least “to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain.” On appeal, a 10th Circuit panel reversed – explicitly rejecting both Constitutionality arguments.

This case is similar to Eldred v. Ashcroft. In that case, the Supreme Court upheld the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (CTEA) that had extended copyright terms by an additional 20-years. In Eldred, the Supreme Court recognized that Congressional authority to grant copyright was limited by the “limited times” provision of the Progress Clause of the US Constitution. However, the Court concluded that the 20-year extension was sufficiently limited.


12 thoughts on “Copyright: Supreme Court to Hear Constitutional Challenge to Copyright Restoration

  1. 12

    Some free flowing thoughts to hammer away at me.

    1. Kelo v. City of New London, 545 U.S. 469 (2005) allowed New London, Connecticut, to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. Can’t Congress essentially take an equivalent of eminent domain over public domain “to increase federal tax revenue?” Public, non-public, private … I mean, it’s all property, right? Of course, only private property receives Constitutional protection — “nor shall private property be taken for public use, without just compensation.” It seems that public domain property can be take for “public use” (use by the government to give to private people) without paying just compensation.

    2. Amendment 10 – Powers of the States and People – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Public domain is by the grace of Congress. If the states can’t keep their 10th amendment powers from the United States, does anyone believe that the people can?

    3. Congress need only cry Treaty and the Supremes will cave.

    4. Illegal alien – We got $50 billion in U.S. pharmacy drug patents that are gonna expire this year, but Congress is favoring a bunch of copyright foreigners? What about US Patent Holders who are getting screwed time wise under foreign patent laws? Is Congress gonna do anything about that?

    5. Are these guys gonna pay taxes on their reborn copyrights or is Congress gonna exempt this assession of wealth?

  2. 10

    YEEEEEEE HAAAAAAAA! If one can’t see that the acts of the copyright holders coupled with the inredible opinions from the courts in this are of law suppress free speech rights to an extent far greater than what the colonists faced in 18th America that one does not history. The very fabric of the Republic and First Amendment Rights are in jeopardy based upon the coordinated efforts of the Federal Government and private industry to maximize profits for said industry in furtherance of deriving taxable events for the Federal Government using the Copyright Clause. THE MORE THINGS CHANGE THE MORE THEY STAY THE SAME.

  3. 9

    Schooled boy Wilton maes soem valid points on the distinctions between copyright and patent. Two different animals with minimal crossover appeal (mostly in the software arena).

    But to bad joke ahead’s point – “better” may not be the appropriate word. I would observe that “different” would be a better word.

  4. 8

    “Why have one category so much better protected?”

    Is it so much better protected? Is there a “fair use” exception in patent law? Is there a “independent invention” defense in patent law? Instead of just focusing on the lengths of time associated with patent and copyright terms, you should focus on the scope of protection afforded to each property. You’ll likely find that patents are much more protective of their subject matter than copyrights are.

  5. 7

    Interesting. Have I missed something, or is this the first copyright case the Supreme Court has taken in several years?

  6. 6

    The Copyright Law is not defended and not enforced for individual authors.A “law” that is not enforced is not a law,it is a fraud.The word “author” should be removed from the Copyright Law of the United States (par.302a,201e).See Petition for Writ of Mandamus Supreme Court Of The United States, In Re:Peker Docket No.08-8088 (which is a reminder of the Constitution Article 1 Section 8 Clause 8:the Copyright Clause) Also s.Google/Groups/Elya Peker. Elya Peker March 7,2011

  7. 4

    Hmmmm … sounds like a good place for the Supremes to “create” a copyright intervening rights exception.

    You know; ’cause they’re so darn good at making stuff up … jus’ ’cause they want to.

  8. 3

    Why have one category so much better protected?

    …inverse proportionality of “value”?

    Hey Sunshine, ya better be careful in your windmill quests – Congress may slap another twenty years to all patents featuring A BIG COMPUTER BRAIN.

  9. 2

    Where are we at again? Life of the author plus 70 years?

    I find it interesting that technology exclusivity is limited to 20 years from filing while art is in the range of 120 years on average.

    Why have one category so much better protected?

  10. 1

    There is a big difference between Golan and Eldred. In Eldred, the Court upheld the constitutionality of the CTEA, which extended the term for existing (non-expired) copyrights for 20 years. The CTEA did not remove anything from the public domain, since it only applied to works currently under copyright protection.

    In contrast, Section 514 does remove works from the public domain. See the initial 10th Circuit panel decision: Golan v. Gonzales, 501 F.3d 1179, 1193 (10th Cir. 2007) (citing Eldred, 537 U.S. at 221).

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