Court Rules Part Of Copyright Act Unconstitutional

from the wow dept

Fri, Apr 3rd 2009 6:16pm — Mike Masnick

A year and a half ago, we were quite surprised when the 10th Circuit Court of Appeals actually sided with Larry Lessig, concerning how a part of copyright law that pulled foreign works out of the public domain was potentially unconstitutional. This was in the "Golan case," the third of three big copyright cases Lessig had championed. The appeals court had sent the case back to the lower court, and that lower court has now decided that, indeed, a trade agreement (URAA) that pulled foreign content out of the public domain is unconstitutional as it violates the First Amendment. While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional. The ruling will almost certainly be appealed, so it's not over yet -- but it's still a rare and important win for those who are fighting to keep copyright law from destroying the public domain.

The specifics may seem a bit down in the legal weeds, but they're quite important. In the famous Eldred case, which challenged the constitutionality of continual copyright extension, the Supreme Court held that this was within Congress' purview, so long as it didn't muck with "the traditional contours of copyright law." The two later cases that Lessig was involved in both focused on this claim, trying to note that changes in the law did not, in fact, stick with the traditional contours of copyright law, and in removing content from the public domain actually violated First Amendment rights. In this case, the plaintiffs had relied on previously public domain works, that were suddenly pulled back under copyright by this treaty. They argued that taking content back out of the public domain went against the traditional contours of copyright law. While the lower court initially disagreed, the appeals court reversed the decision, and sent it back to the lower court -- noting that since the traditional contours of copyright law had been changed, the new law had to be reviewed as to whether or not it violated the First Amendment.

This latest ruling said that, yes, it appears that it did in fact violate the First Amendment -- pointing out that while Congress did need to comply with international treaties, it did not have to do so in the way it did here (i.e., it could have created an exception for those who were already making use of these works in the public domain):

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs' vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs' protected speech. Accordingly--to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain--Section 514 is substantially broader than necessary to achieve the Government's interest.

So, yes, this is a narrowly focused issue (and likely to be appealed right back up), but just the fact that a court has finally realized that copyright law can violate the First Amendment is a big win. Where this could get more interesting is if it eventually gets appealed up to the Supreme Court, and the court recognizes (as it hopefully will) that there's a discrepancy between this ruling and the ruling in another of Lessig's cases, Kahle v. Gonzales (which happened in the 9th circuit), and decides to look into whether or not certain changes in copyright law really did change the traditional contours of copyright law.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, first amendment, golan, larry lessig, public domain

28 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Weird Harold, 3 Apr 2009 @ 6:39pm

It's a super narrow decision that really focuses on something that is out of the mainstream of copyright law. The only first amendment issue at play here is speech that was granted (public domains content) moved out of the public domain. In that very narrow regard, some previously permitted free speech was lost.

I wouldn't think of it as anyway way in suggesting that copyright law per se violates the first amendment, just this very particular (and somewhat odd) move.
[ link to this | view in thread ]
RD, 3 Apr 2009 @ 6:44pm

sure
"I wouldn't think of it as anyway way in suggesting that copyright law per se violates the first amendment, just this very particular (and somewhat odd) move."

Well thats good, since Mike never said that. Per se. Note the conditional word "CAN" in the above description. As in, possible. Could be. MIGHT. Nice try at baiting though.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2009 @ 7:02pm

Re:
I wouldn't think of it as anyway way in suggesting that copyright law per se violates the first amendment, just this very particular (and somewhat odd) move.

Which is exactly what Mike said. So who do you think you're disagreeing with?

Separately, there are a number of top legal scholars who actually *do* believe that copyright law violates the First Amendment wholeheartedly, and that we'll eventually see some lawsuits detailing that fact.
[ link to this | view in thread ]
Willton, 3 Apr 2009 @ 7:07pm

Re: sure
Well thats good, since Mike never said that. Per se. Note the conditional word "CAN" in the above description. As in, possible. Could be. MIGHT. Nice try at baiting though.

Or it's possible that Weird Harold was not trying to start a fight and was merely stating a fact. You sound like you were just hoping to correct him on something and then badger him.
[ link to this | view in thread ]
Weird Harold, 3 Apr 2009 @ 7:15pm

Re: Re: sure
You would be correct - my comments if anything are an attempt to sum up a longer post, and also to make it clear in case this post is used later by Carlo to say "copyright violates first amendment" in one of his expert posts.
[ link to this | view in thread ]
Jesse, 3 Apr 2009 @ 7:56pm

Ditto ditto ditto
[ link to this | view in thread ]
Weird Harold, 3 Apr 2009 @ 8:15pm

Re: Re:
There are also people who believe in odd things, like scientologists and flat earthers. Considering the number of legal scholars on the planet, I am sure you can find at least one that you say that the term "the right to bear arms" means that you can go topless.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2009 @ 9:03pm

Re: Re: Re:
Yes, while we discuss odd things from different cultures, let's talk about poutine.
[ link to this | view in thread ]
JMG, 3 Apr 2009 @ 9:05pm

Re: Re: Re:
Equating the necessity of copyright laws (a vaild topic) with whether the Earth is flat (an invalid topic) is quite a stretch. It is not at all obvious whether copyrights are important anymore (eg China's way of dealing with "piracy"). Just because you may feel they are still needed, which is perfect good opinion, does not mean that getting rid of or greatly modifying them is a bad idea.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2009 @ 9:19pm

"While it may seem narrowly focused, this is the first case that has successfully challenged a part of copyright law as being unconstitutional."

I know you based the above on the article presented at the Stanford website, but it is worth noting that this is not the first case that has successfully challenged a part of copyright law as being unconstitutional. An earlier district court decision in San Diego struck down a part of copyright law that dealt with the abrogation of state sovereign immunity.

As for a conflict existing between the 9th and 10th Circuits that might be viewed as sufficient reason for the Supreme Court to weigh in, I am familiar with both decisions and merely note here that they were directed to separate and distinct issues of copyright law. Thus, it seems doubtful that the Supreme Court would eventually elect to hear an appeal of this decision by the district court.

I agree that the district court rendered a decision on a very narrow issue, but an issue that could be overcome should Congress decide to do so by amending the pertinent section of copyright law that was challenged. It is not that I believe the law should be amended, but merely to note that Congress has been provided "wiggle room" that could be employed to "close the door" opened by this case.
[ link to this | view in thread ]
Anon, 3 Apr 2009 @ 10:57pm

Not as narrow as it appears...
This issue has some personal resonance with me. I and several of my friends and mentors study and translate (or adapt) older scripts and plays. This is a very common occurrence in live theater across the nation. It would be devastating to the theatrical community to have works withdrawn from Public Domain. It could potentially ruin months of work in what has always been considered a creative field. Cultural adaptions are and should always be considered new creative works, despite the fact that they are based on a different creative work.
[ link to this | view in thread ]
Anonymous Coward, 4 Apr 2009 @ 7:44am

Re: Re: Re:
No, that would be someone who read "the right to bear arms" as "the right to bare arms"... in other words some one who was wrong....
[ link to this | view in thread ]
Anonymous Coward, 4 Apr 2009 @ 7:48am

Re: Re: Re:
No, that would be someone who read "the right to bear arms" as "the right to bare arms"... in other words some one who was wrong....
[ link to this | view in thread ]
Anonymous Coward, 4 Apr 2009 @ 7:50am

Re: Re: Re:
No Harold, that would be the right to bare arms. Please keep in mind that despite sounding the same, words can have entirely different meanings.
[ link to this | view in thread ]
Gene Cavanaugh, 4 Apr 2009 @ 9:58am

Copyright law
Excellent article.
I suggest, though, that this is essentially the Supreme Court that elected our worst (well, except for Reagan) President!
We may have to hope for Obama to appoint new justices for any such progressive, nonpartisan actions.
[ link to this | view in thread ]
Weird Harold, 4 Apr 2009 @ 10:15am

Re: Re: Re: Re:
That is the point - sort of a Rosananna Rosanadanna moment.

"nevermind!".
[ link to this | view in thread ]
Anonymous Coward, 4 Apr 2009 @ 12:20pm

Re: Re: Re: Re:
I thought it was the right to arm bears.
[ link to this | view in thread ]
Mike (profile), 4 Apr 2009 @ 5:33pm

Re:
As for a conflict existing between the 9th and 10th Circuits that might be viewed as sufficient reason for the Supreme Court to weigh in, I am familiar with both decisions and merely note here that they were directed to separate and distinct issues of copyright law.

Both dealt with the traditional contours of copyright and whether or not they were changed.
[ link to this | view in thread ]
Anonymous Coward, 4 Apr 2009 @ 6:37pm

Re: Re:
True, both cases use the phrase "traditional contours" contained in Eldred, but the cases deal with separate sections of our copyright laws. In the Golan case the issue involved the restoration of copyright in the US for foreign authors as specified at 17 U.S.C. § 104A.

Thus, at this point in time there does not exist a "conflict" between the 9th and 10th Circuit Courts of Appeal.
[ link to this | view in thread ]
bob, 5 Apr 2009 @ 2:58am

Baby and Bath Water
Rest assured that the next international copyright convention will not include the member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation's own body of copyright law clause.
As the constitution of the United States says that any ratified treaty is the supreme law of the land and we currently have Supreme Court Justices that already look at non US binding international law in their decisions, I would expect more US sovereignty to be thrown out the window.
[ link to this | view in thread ]
Pete Braven, 5 Apr 2009 @ 2:25pm

Re: Baby and Bath Water
If the incredible tangle of 'copyright' was reduced to common sense, it would basically follow the same rules as say a thesis for a doctorate. If you quote someone else's work say so, with a reason but the bulk of the thesis must be original work or,.. you get thrown out of university!
Universities have applied that rule in a global sense for years and it works just fine! It's pity publishers are a little less ethical.
Lawyers just confuse the issue to make meggabucks out of the cases they drag through the courts!
[ link to this | view in thread ]
Anonymous Coward, 5 Apr 2009 @ 10:07pm

Re: Re: Re:
And I believe that Weird Harold has an I.Q. of somewhere south of 80. If that's true or not, I'll never know. But, the way he champions Copyright, I just can't fathom someone really smart. Or maybe, very VERY smart, in the fact that he's trying to rape American citizens of every cent they have, via a Government mandated monopoly.

Let's put it this way, if governments stopped extending copyrights, and put them back to the original time for being in the public domain. No one would care. But now, copyright is just looked at as a welfare tax for artists, especially musicians.
[ link to this | view in thread ]
Anonymous Coward, 5 Apr 2009 @ 10:16pm

Re: Copyright law
WTF Gene Cavanaugh ?

Do you have your head up your A$$? WTH is with your comment? Why would you think Reagan was a worse President than "W"? And, get off the Obama is the Messiah kick already. Obama is on a fast track to be another Carter, Well liked, but an idiot when it comes to being a leader. With Obama's track record so far, the U.S. will be a Quadrillion Dollars in debt by the end of his first term.
[ link to this | view in thread ]
Weird Harold, 5 Apr 2009 @ 11:10pm

Indeed, it is inappropriate for me to be picking an argument with you; however, this is the internet, and i am techdirt's troll.

let us resume.
[ link to this | view in thread ]
Weird Harold, 6 Apr 2009 @ 5:32pm

Re:
..and that is yet another fake Harold. Children.
[ link to this | view in thread ]
nasch, 7 Apr 2009 @ 6:53am

Re: Re: Re: Re: Re:
"Never mind" was actually Emily Litella, not Roseanne Roseannadanna
[ link to this | view in thread ]
Anonymous Coward, 3 Mar 2010 @ 3:14pm

This Enzyte was in the "Golan case," the third of three big copyright cases Lessig had championed.
[ link to this | view in thread ]
iquanyin, 12 Apr 2010 @ 1:26pm

Re: Re: Re:
except "bear" means carry, whereas "bare" means uncover. so only if all involved couldn't spell.
[ link to this | view in thread ]