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Wednesday, September 05, 2007

Golan v. Gonzales-- How The First Amendment Limits Copyright Law

JB

The Tenth Circuit has handed down a very important copyright case, Golan v. Gonzales, which holds that section 514 of the Uruguay Round Agreements Act-- which implements the Berne Convention on copyrights-- may violate the First Amendment because it takes some materials out of the public domain and makes them copyrighted. Relying on language in Eldred v. Reno, the court held that the URAA violated the First Amendment because it altered the "traditional contours of copyright law." It pointed out that the tradition in the United States has been for works to be created, copyrighted and then revert to the public domain. It also pointed out that traditionally Congress has rarely ever restored copyrights for public domain works, and then only in emergency situations where, for example, war prevented the authors from complying with copyright formalities. The court concluded that neither the idea/expression distinction nor the fair use defense ameliorated the fact that work that was free for anyone to use was now locked up in fresh copyrights. Hence it remanded for further determination of whether the URAA is content neutral or content based in order to apply the appropriate level of scrutiny.

This 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. Larry Lessig, who represented plaintiffs in the case, is quite right that this is a very big deal. The court's decision and its reasoning are a significant breakthrough. Everyone who cares about freedom of speech-- and free culture-- should be happy about this decision.

At the same time, we should be wary of some possible future pitfalls. The first potential pitfall comes from the fact that the court had to use a test of tradition taken from Eldred. At first glance, that test-- the "traditional contours of copyright law"-- might seem to be of great help to critics of expansive copyright law. That is because copyright law has become far more expansive than it was at the founding in almost every area. The problem is that if we interpret the "traditional contours of copyright law" to require only that copyright laws basically resemble previous versions, only with longer terms and more constricted exemptions, the "traditional contours" test will not do much work. That is, if defenders of expansive copyright laws are able to show that new laws create differences only in degree rather than kind, and that they are part of a gradual historical progression of increased copyright protection, arguments from traditional contours may be more difficult to make.

The best cases for using Golan's analysis are those where, as in Golan itself, material is taken out of the public domain, or cases like the DMCA, where Congress creates a brand new set of rights that have no analogy to a pre-digital world. (Right after Eldred came down I argued that the "traditional contours" test might mean that aspects of the DMCA are unconstitutional.). At the same time, there is a problem that comes from almost all uses of "tradition" as a legal standard. Defenders of paracopyright laws like the DMCA could argue that the very fact that statutes like the DMCA have no analogy in a pre-digital world means that there no "traditional contours of copyright" have been violated by such statutes. (Recall Chief Justice Rhenquist's argument that airport terminals could not be public fora because there was no tradition of protecting speech in them, since, of course, they had not been around very long). The best response, from a traditionalist perspective, is that new rights in derogation of the traditional balance between copyright and the public domain should be strictly construed.

The second problem created by Golan is that it remands for a determination of whether the URAA is content neutral or content based. I think this is a mistake. Copyright law does not fit into tiers of scrutiny analysis. It is more like libel law which is clearly content based but has never been thought to be subject to scrutiny analysis. (The law of seditious advocacy is another example.). Copyright law, like libel, involves categorical balancing. If the law goes outside the traditional boundaries of copyright, it should be treated like a law that tried to impose strict liability for libels involving public figures. It should be held unconstitutional, or, at the most it should be upheld only on a showing of being narrowly tailored to achieve a compelling state interest, essentially the strict scrutiny test.

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