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:
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.