The argument issued before the Supreme Court by Anthony Falzone, Executive Director of the Fair Use Project, in Golan v. Holder is mentioned in the below BNA article by Tom P. Taylor in which Falzone explains how the government went too far when it revived copyright protections for certain foreign work.
Congress overstepped its bounds in restoring copyrights for foreign works long held in the public domain, including paintings by Picasso and films by Alfred Hitchcock, lawyers told the U.S. Supreme Court Oct. 5 (Golan v. Holder, U.S., No. 10-545, argued 10/5/11).
The lawyers represented a group of conductors, film archivists, and other petitioners who make their living off of works of art lacking copyright protections.
Unprotected works exist in the “public domain” and the rights to those works are owned by the public, Anthony T. Falzone, Stanford Law School Center for Internet and Society, Stanford, Calif., explained. Thus, the government went too far when it revived copyright protections for certain foreign works in exchange for securing greater protections for American authors abroad.
According to Falzone, Congress's attempt to pluck works from the public domain and restore their copyright protections was a direct violation of the “limited Times” language in the Copyright Clause.
If Congress is allowed to resurrect copyrights in this way, then no real limit exists on the period of protection, Falzone argued. Without an expiration date, “we can never know if we've reached the end or not.”
Falzone also zeroed in on the promotion of progress requirement of the Copyright Clause, arguing that the law does nothing to stimulate innovation in the United States. Rather, it inhibits access only to works previously available to the general public, and “reward[s] people who made things long ago,” he said.