Tuesday, September 04, 2007

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.


Crosbie Fitch said...


1) 'public domain' means 'all published works', and copyright is fundamentally an incentive to the author to publish, to place their works into this public domain. It is material only to the author as to the duration of its protection.

2) 'Public domain' means those works specifically exempt from copyright, especially those for which the term of copyright's protection has expired. Copyright being a quid pro quo of limited monopoly in exchange for full public 'ownership' thereafter.

It would be good at least to establish a definition of the 'public domain' and whether it actually exists.

And then we can move on to actually recognising whether the public are at all impacted by copyright's duration.

Then one day, we might even question whether the public are adversely impacted by copyright's very existence.

One day soon perhaps...

CEP said...

On first reading, I find two disturbing aspects of this opinion. First, it quotes Nation Enterprises (slip op. at 7, 17) for its "engine of free expression" language without ever grappling with the closely linked language concerning the Congressional balancing act between the First Amendment and copyright limits... even when quoting from and citing to Eldred.

Second, and more disturbing, it quotes a number of Second Circuit opinions for propositions that have since been explicitly or implicitly overruled, either by new case law or changes in the statutes.

Overall, this is not an impressive opinion. There is certainly something to its fundamental argument — that there is a First Amendment issue involving removal of works from the public domain that must be resolved — but it does an inelegant and inadequate job of supporting that argument in this context. I also find it quite troubling that the opinion never grapples with the treaty obligation v. First Amendment issue, which is a much closer call than the legislation v. First Amendment issue... especially since, regardless of whether it is "right," there is some extremely strong precedent in environmental law making clear that a treaty can come much closer to implicating a constitutional right than can legislation.

Dean C. Rowan said...

At a glance, I'm not impressed with the opinion, either, but I genuinely don't understand the complaint that it is "analytically backwards" in some significant way. Granted, considerations of standard of review logically precede those of substance, but the challenges founded on the Copyright Clause are distinct from the First Amendment challenge. Are you suggesting the court should have remanded without deciding the copyright questions? In order to avoid reaching multiple, perhaps superfluous constitutional matters?

William Patry said...

Hi Dean. I am suggesting that once the court concluded the act was within Congress's power, that was the end of the inquiry.

Anonymous said...

Doesn't the 1st Amendment amend the Article 1 Section 8 exercise of Congressional power?

William Patry said...

Anonymous: just because it uses the word "amendment?" And if so, how specifically?

Anonymous said...

Not just because of the word but because of the fact that it is placed after the former into an integrated document(of sorts). "How specifically" I would leave up to the massive First Amendment jurisprudence and the hundreds of academics and others that revel it its implications and supposed intricacies. (Copyright is actually more interesting and challenging conceptually, I think.) I doubt there is a good First Amendment argument. It is overly simplistic to equate free speech with "free" content or even free access to content. But the approach to separate the issues under the two provisions seems sensible nonetheless. Congress in the exercise of one positive power can run afoul of a proscriptive clause in the same Constitution.

maz said...

The 10th Circuit's decision in Golan seems to support a finding that the federal Antibootlegging Legislation likewise alters the traditional contours of copyright by its removal of unfixed live musical expression from the public domain - on the front end - by not allowing the public unfettered use of this unfixed expression until it is fixed and Congress has authority to limit its use under the Copyright Clause. Dastar is being cited as support for a federal right to copy public domain material/expression which would include unfixed works not yet subject to congressional regulation. I think Golan may be helpful to Martignan as the 2nd Circuit reviews the affect of the First Amendment on remand.