Golan's Copyright Lows

In a 37 page opinion today, available here (HT to Ryland for being first off the dime on it), the Tenth Circuit stated it was affirming the district court's challenge to the GATT implementing legislation's retroactive protection for works of foreign origin that fell into the public domain pursuant to 17 USC 104A, Golan v. Ashcroft, No. 05-1259 (10th Cir. Sept. 4, 2007), but nevertheless remanded to see if the statute could survive First Amendment scrutiny. This baffling approach is the first vindication of an approach argued by Larry Lessig and colleagues that I had thought made no sense at all. One can expect an eventual petition for cert., which I expect will be granted.

Plaintiff made two attacks on the legislation: (1) it violated the limited times limitation; (2) Congress has no authority to remove material from the pd. The limited times argument was an easy loser, with the court of appeals siding with the Ninth Circuit's Kahle opinion. Kahle regarded the argument as a regurgitation of the arguments made in Eldred.

It was, therefore, on to the exceeding authority argument by restoring copyright to pd works. The 10th Circuit agreed that "it would be troubling if Congress adopted a consistent practice of restoring works in the public domain in an effort to confer perpetual monopolies." (p. 13), but relying on the DC Circuit's Luck opinion, the Tenth Circuit easily rejected plaintiff's reliance on the Supreme Court's Graham v. John Deere opinion.

That was the first 16 pages of the court's opinion, and it exhausted the plaintiffs' arguments: what then were the remaining 21 pages devoted to? Plaintiff's First Amendment review argument. I have mentioned a number of times in a number of places, my view that this argument makes no sense at all because a standard of review is not a substantive attack on legislation and because in this case once it was found that Congress had acted within its copyright powers, the jig was up. Moreover, as in Eldred, once it is admitted that one's First Amendment argument is based on one's copyright argument, and the copyright argument fails, presto should go the First Amendment argument. That's what Justice Ginsburg so deftly got out of Professor Lessig at oral argument in Eldred.

But, Eldred did state that First Amendment scrutiny might be appropriate if copyright legislation "altered the traditional contours of copyright protection," 537 U.S. at 221, and that's how the Tenth Circuit spent the remaining 21 pages of its opinion. Of course, one might lose even if the contours were believed to have been altered, and that's what the remand is about.

The Tenth Circuit took the issue head on by examining what it thought the traditional contours of copyright are: one of them is that like Las Vegas, what goes into the pd stays in the pd. GATT therefore altered that traditional contour, the court held, in an historical review of prior copyright statutes. That seems an odd approach: the first time Congress imposed compulsory licensing, in the 1909 Act, it was certainly altering the traditional contours of copyright, and Nathan Burkhan argued, violating an alleged limitation of granting only "exclusive" rights. More to the point, there have been prior retroactive pulling out of works from the pd, as in the wartime cases. How many of these are needed to make a minhag (tradition)?

My biggest issue, though, is that to me the court got things analytically backwards: I cannot see how the court could have rejected plaintiff's' substantive challenges, but then remanded on a standard of review question. Hopefully smarter folks than me can answer that one. One should not deny this is a very big victory for Professor Lessig and his colleagues, whom I congratulate.