It's almost midnight here on the east coast, but I'm wide awake -- happily -- because I have some truly *great* news to report. The 10th Circuit just handed down its ruling in the appeal of Golan v. Gonzales. And we have won! The First Amendment lives! (at least in the 10th Circuit).
Some background. The Golan case challenges the constitutionality of the Uruguay Round Agreements Act, by which, among other things, Congress removed thousands of books, films, songs, and other creative works from the public domain and "restored" them to copyright. The Golan plaintiffs, a group of conductors and film distributors who used these public domain works, challenged Congress's depredation of the public domain. The primary ground for the challenge was that Congress, by removing works from the public domain, departed from the "traditional contours of copyright protection" in a way that limited free speech in violation of the First Amendment. Limited how? By making the use of the former public domain works subject to the approval of the owners of the "restored" copyrights. By, in short, imposing copyright burdens on free speech where none had existed before.
The Golan plaintiffs' First Amendment theory was built on something the Supreme Court said in Eldred v. Ashcroft. Eldred, of course, was the case where the Supreme Court affirmed Congress's 20-year extension of already-existing copyrights. The Court rejected a First Amendment challenge to that change to copyright, holding that a long history of copyright extensions meant that Congress's latest extension was constitutional. But the Court issued an important caveat. Where Congress does not act in accordance with history, but instead alters copyright's "traditional contours", courts must conduct a more searching First Amendment review to ensure that whatever Congress has done to the copyright law -- which is, of course, a regulation of speech -- does not burden speech in ways that cannot be justified.
Until today, we haven't known very much about what the "traditional contours" test meant. Now we have some data, and it's possible -- not likely, mind you, but tantalizingly possible! -- that we've seen the first indication that courts will take a more active role in ensuring that Congress's copyright lawmaking respects free speech. The 10th Circuit ruled in Golan that Congress's removal of works from the public domain departed from copyright's traditional contours, and imposed significant burdens on free speech. I won't get into every detail of the opinion in this blog post -- but suffice to say that the 10th Circuit understood the very important issues at stake, and resolved them in a way that will with luck start to bring copyright into line with all other forms of speech regulation -- i.e., when Congress legislates, it had better think hard about the Constitution.
We don't know yet whether the government will seek en banc rehearing by the 10th Circuit. We'll see. But for the moment, this is a victory to be savored. For the moment copyright is no longer a First Amendment-free zone. And works in the public domain will stay in the public domain.
Before I go, indulge me in a shout-out to the very able team at CIS that represented the Golan plaintiffs and fought hard for this result. Larry Lessig, Ed Lee, Jennifer Granick, Lauren Gelman, Elizabeth Rader, Tony Falzone, Colette Vogele, David Levine, and David Olson all had significant roles in this win. Also much appreciated was the substantial help we received from the fine lawyers at Wheeler Trigg Kennedy in Denver, including Hugh Gottschalk, Carolyn Fairless, Sharon Gottesfeld, and Janean Hart.
One final point . . . A few months ago the Ninth Circuit rejected a similar First Amendment argument in Kahle v. Gonzales, another CIS case. Kahle is a challenge to Congress's removal from the copyright law of our former system of copyright "formalities" -- i.e., the system of procedural requirements (requirements that governed U.S. copyright for nearly 200 years) that defined the steps authors had to take to claim and then maintain copyright. Current copyright law, which operates without mandatory formalities, gives copyright automatically and indiscriminately, whether the author wants it or not, and whether there is any commercial value in a particular work for copyright to protect. The removal of formalities has led to an explosion in the unfortunate category of "orphan works" -- i.e., creative works that are still under copyright, but for which owners are absent or hard to find. People who want to make use of an orphan work find it difficult and expensive to find and owner and obtain permission. The result is uses -- often quite interesting and productive uses -- that are never made.
This is obviously a burden on speech, and one that need never have been imposed. And the removal of formalities is also a shift in copyright's traditional contours. As such, the removal of formalities must be assessed to see if it meets the requirements of the First Amendment. That was what the plaintiffs (Brewster Kahle and his Internet Archive, and Rick Prelinger and his Prelinger Archive of motion pictures) asked for, and what the Ninth Circuit refused. CIS has asked the U.S. Supreme Court to grant certiorari and reverse the Ninth Circuit. The Tenth Circuit's decision in Golan should make a cert grant more likely, because it creates a split between two federal circuit courts regarding the First Amendment's application to Congress's copyright lawmaking.
Stay tuned -- this could get interesting. I've attached the Golan opinion below. It's worth a read.