Lessig rescues Golan from the ashes of Eldred

I neglected to report that Larry Lessig won his first case earlier in the Autumn (5 September to be precise).

"The 10th Circuit decided our appeal in Golan v. Gonzales today. In a unanimous vote, the Court held that the "traditional contours of copyright protection" described in Eldred as the trigger for First Amendment review extend beyond the two "traditional First Amendment safeguards" mentioned by the Court in that case. It thus remanded the case to the District Court to evaluate section 514 of the Uruguay Round Agreements Act (“URAA”) under the First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in related cases, that the only First Amendment review of a copyright act possible was if Congress changed either fair use or erased the idea/expression dichotomy. We, by contrast, have argued consistently that in addition to those two, Eldred requires First Amendment review when Congress changes the "traditional contours of copyright protection." In Golan, the issue is a statute that removes work from the public domain. In a related case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is Congress's change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a "traditional contour of copyright protection." Under the 10th Circuit's rule, it should merit 1st Amendment review as well...

The opinion by Judge Henry is well worth the read. The argument was one the best I have seen. All three judges knew the case cold. It is a measure of how good courts can be that they took such care to review this case."

The decision is indeed worth reading and basically says the Eldred decision stands - tough - but there are serious questions relating to freedom of expression that need to be taken into consideration when works are removed from the public domain by changes to copyright laws.

"Plaintiffs in this case range from orchestra conductors, educators,
performers, and publishers to film archivists and motion picture distributors. They
challenge two acts of Congress, the Copyright Term Extension Act (“CTEA”),
Pub. L. No. 105-298, §§ 102(b) and (d), 112 Stat. 2827-28 (1998) (amending 17
U.S.C. §§ 302, 304), and § 514 of the Uruguay Round Agreements Act (“URAA”),
Pub. L. No. 103-465, 108 Stat. 4809, 4976-80 (1994), codified at 17 U.S.C. §§
104A, 109.

Also known as the Sonny Bono Copyright Term Extension Act, the CTEA
increased the duration of existing and future copyrights from life-plus-50-years to
life-plus-70-years. Section 514 of the URAA implements Article 18 of the Berne
Convention for the Protection of Literary and Artistic works. Ushered into being
in 1886 at the behest of Association Littéraire et Artistique Internationale, an
organization founded by Victor Hugo and dedicated to obtaining protection for
literary and artistic works, the Berne Convention requires member countries to
afford the same copyright protection to foreign authors as they provide their own
authors. In this case, congressional compliance with the Berne Convention meant copyrighting some foreign works in the public domain. 2

Plaintiffs argue the CTEA extends existing copyrights in violation of the
“limited Times” provision of the Constitution’s Copyright Clause. With regard to
the URAA, plaintiffs contend § 514 shrinks the public domain and thereby violates
the limitations on congressional power inherent in the Copyright Clause. In
addition, plaintiffs argue that § 514’s removal of works from the public domain
interferes with their First Amendment right to free expression.

The district court dismissed plaintiffs’ CTEA claim and granted summary
judgment for the government on plaintiffs’ URAA challenges. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court’s dismissal
of the CTEA claim as foreclosed by the Supreme Court’s decision in Eldred v.
Ashcroft, 537 U.S. 186 (2003). We also agree with the district court that § 514 of
the URAA has not exceeded the limitations inherent in the Copyright Clause.
Nevertheless, we hold that plaintiffs have shown sufficient free expression
interests in works removed from the public domain to require First Amendment scrutiny of § 514. On this limited basis, we remand for proceedings consistent with this opinion."

Mr Golan, for those not familiar with the case, performs and teaches works
by foreign composers like Shostakovich and Stravinsky. He contended that the removal of some of these works from the public domain, due to changes in US copyright laws, led to higher costs to him for performance fees, royalties, sheet music rentals etc. The theory being that when these costs are too high they interfere with his first amendment rights to freedom of expression. The US courts tend to like to avoid the free speech v copyright conflict so it is something of a surprise that this decision accepts there is a problem.