Golan v. Gonzales and First Amendment Limits on Copyright Law:
Both Larry Lessig and Jack Balkin have very interesting posts on Golan v. Gonzales, a fascinating Tenth Circuit case (argued by Larry) that went most of the way towards striking down section 514 of the Uruguay Round Agreements Act on First Amendment grounds. As I understand it, this section of the act restored the copyright of some foreign materials that had fallen into the public domain; it was passed to satisfy the U.S. treaty obligation to afford the same copyright protection to foreign authors as U.S. law provides to U.S. authors. Golan's argument is that taking the materials out of the public domain violated the First Amendment.
Lessig's theory that the Tenth Circuit embraced in Golan is based on the following passage in Eldred v. Ashcroft:
Jack is right that "[t]his decision is quite important because it builds out from Eldred-- a case that most people saw as a loss-- the beginnings of a first amendment jurisprudence that would limit copyright." But I wonder how far that First Amendment jurisprudence will get, and in particular whether the Supreme Court will be on board. Reading over Eldred, I tend to doubt the Justices intended the "traditional contours" language to have the broad meaning that Larry (and the Tenth Circuit) thinks it means. My guess is that the Justices left open the First Amendment door just in case Congress tries something really wacky. But I wouldn't be surprised if the Justices don't find this amendment — passed, as I understand it, to satisfy a treaty obligation and harmonize the law — particularly wacky.
It probably will take a while before we know what the Justices think, though. The Tenth Circuit panel didn't actually resolve the constitutional issue, so the Justice Department doesn't anything to work with yet for a cert petition. My guess is that the issue will percolate around for a bit before the Justices get involved.
Lessig's theory that the Tenth Circuit embraced in Golan is based on the following passage in Eldred v. Ashcroft:
The First Amendment securely protects the freedom to make — or decline to make — one's own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.In Golan, the Tenth Circuit read this to mean that if Congress has altered the traditional contours of copyright protection, then the law must be then subjected to "further" First Amendment scrutiny. The Tenth Circuit concluded that the Act did in fact alter those traditional contours by taking material that had been in the public domain and then subjecting them to copyright. But the panel wasn't really sure what to do next; they remanded to the district court to figure out how to "subject" the law to "further" First Amendment scrutiny.
Jack is right that "[t]his decision is quite important because it builds out from Eldred-- a case that most people saw as a loss-- the beginnings of a first amendment jurisprudence that would limit copyright." But I wonder how far that First Amendment jurisprudence will get, and in particular whether the Supreme Court will be on board. Reading over Eldred, I tend to doubt the Justices intended the "traditional contours" language to have the broad meaning that Larry (and the Tenth Circuit) thinks it means. My guess is that the Justices left open the First Amendment door just in case Congress tries something really wacky. But I wouldn't be surprised if the Justices don't find this amendment — passed, as I understand it, to satisfy a treaty obligation and harmonize the law — particularly wacky.
It probably will take a while before we know what the Justices think, though. The Tenth Circuit panel didn't actually resolve the constitutional issue, so the Justice Department doesn't anything to work with yet for a cert petition. My guess is that the issue will percolate around for a bit before the Justices get involved.
Nevertheless, I do find this interesting. Should treaties be able to override the Bill of Rights? I would suggest that since the Bill of Rights was enacted after the treaty power was, that the later should prevail. Indeed, the contrary would seem to open us to a slippery slope of abrigating our Constitutional protections through joining treaties. What is next? Gun ownerhsip? The U.N. is firmly behind gun control.
Personally, it makes little Constitutional sense for the president to sign a treaty and have it ratified by 2/3 of the Senate, and then have that override the Constitution, when amending it would take a 2/3 vote of both Houses of Congress and 3/4 of the States. Indeed, with that, why bother amending the Constitution for anything. Rather, just find some country in the world to sign a treaty with, have it ratified by 2/3 of the Senate, and viola, you have just bypassed the amendment process.
I think everyone agrees that a treaty can't trump the Bill of Rights. The question here is the consistency of the statute with the Bill of Rights.
If a law does not alter the traditional contours of copyright protection, further scrutiny is unnecessary [If p then q].
This law does alter the traditional contours of copyright protection [not p].
Therefore, further scrutiny is necessary [therefore not q].
In fairness, courts often reason this way from precedent.
I finally read the case, and there is no question that the 1st Amdt. has priority here, esp. since the remand primarily seems to revolve around what level of scrutiny to apply to the URAA, requiring strict scrutiny if the restriction is content based (though I can't see how it could be).
I am not sure though what you mean by consistency. Is the idea that courts should try to intepret statutes so that they aren't violative of the Constitution?
I did find this footnote interesting:
Maybe another way of saying this is that normally First Amdt. scrutiny would be warranted. But in the Eldridge case, the traditional contours were not altered, and so, they didn't have to address the 1st Amdt. But here, without that, the normal rules apply, which requires the 1st Amdt. scrutiny.
This issue is important in that it establishes a bright line (works already fallen into the public domain) that the expansion of copyright may not cross. Without this bright line, a publisher with a plausible claim on an author's literary estate could well reappropriate a centuries-old work. We already see publishers claiming copyright over classic literature that they reprint; imagine if the law permitted them to enforce those claimed copyrights?