Supreme Court limits First Amendment scrutiny of copyright laws in Golan v. Holder opinion

By Professor Jay Dougherty

On Jan. 18, the Supreme Court issued its highly anticipated decision in a case challenging the constitutionality of 17 U.S.C. §104A, which restored copyright to millions of foreign works and granted federal copyright to pre-1972 foreign sound recordings. As the Court did previously in Eldred v. Ashcroft, upholding the constitutionality of the 1998 Copyright Term Extension Act that extended all existing copyrights for 20 years, it exhibited great deference to legislative decisions as to the extent of copyright, notwithstanding the constitutional language that appears to limit legislative power to grant copyrights in order to "promote the progress" of knowledge and only for limited times. The plaintiffs, orchestra leaders and others who had relied on the public domain status of various foreign works argued that, unlike the CTEA, the restoration statute removed works from the public domain. The Court rejected their arguments. According to the majority, Congress can accord copyright protection in circumstances that do not elicit the production of new works of authorship--it is the system of protection generally that must promote progress. The government argued here that it benefits U.S. authors for the U.S. to more rigorously comply with its copyright treaty obligations, even if the new law did not elicit creation of new works (or accord any protection to U.S. works). Because the restored foreign copyrights would not last any longer than they would have, had they not entered the public domain in the first place, the statue did not violate the constitutional limited times restriction any more than the CTEA did.

Perhaps more significantly, the Court clarified the class of copyright legislation that would alter the traditional contours of copyright and thus be subject to First Amendment scrutiny. Clearly, copyright laws "abridge speech," in a sense. In Eldred, the Court had rejected a First Amendment challenge except in cases where legislation alters the traditional contours of copyright. This was because copyright law contains its own internal protections of free speech interests, namely the exclusion of copyright protection for ideas and the fair use defense that permits the use of another's copyrighted expression in some situations, e.g. for purposes of commentary or parody. A panel of the 10th Circuit Court of Appeals earlier in the development of this case had interpreted the USSC's language such that a law that removed works from the public domain would also alter the traditional contours of copyright. After all, the traditional contour of copyright protection is that works receive protection until they enter the public domain, but can thereafter be freely used by anyone. In the new decision, the Court clarified that only legislation that impacted the denial of copyright for ideas or limited fair use would alter traditional contours and require stricter First Amendment scrutiny.

[Read a longer piece of commentary on the history of the case and the oral argument before the Supreme Court last fall.]

Justices Breyer and Alito dissented. Essentially, they argued that copyright laws must be justified by a utilitarian rationale as they have historically. Also that they elicit creation of new works for the ultimate benefit of society. Removing existing works from the public domain does not elicit any new creation, and also impacts free speech interests of the public. Hence, they argued, such a law should be scrutinized to see that it served some important copyright-related purpose. Even if solidifying the U.S. position in the international copyright system is important, the treaties actually permit less restrictive alternatives than the approach chosen by the legislature. Encouraging dissemination of works (rather than creation of new works), which the majority argued would promote knowledge, could be argued to authorize Congress to remove the Bible from the public domain, according to the dissenters. They concluded that the restoration statute exceeded Congress' power under the Constitution.