Copyright and Free Expression:

Last week brought the news that the Supreme Court has granted cert in a pretty interesting copyright case case from the 10th Circuit, Golan v. Holder, that promises to raise some important questions at the ever-elusive copyright/first amendment boundary. The background is this: the US signed on to the Berne Convention on Literary Property, the leading multilateral copyright treaty, in 1989. Berne requires signatories to amend their domestic copyright laws in a number of important ways. First, Berne prohibits all copyright “formalities” — things like the requirement that copyright owners register their copyrights in order to obtain protection, or the requirement that you have to put a copyright notice on all distributed copies of copyrighted works. These had long been part of US copyright law, and we (more or less) got rid of them in the 1989 amendments to the Copyright Act, enacted as part of our accession to Berne. Berne also requires, in Article 18, that a country joining the Berne Convention must provide copyright protection to foreign works for as long as protection for those works exists in their country of origin, even if those works had fallen into the public domain in the country joining the Convention.

Many foreign works had fallen out of US copyright before 1989 precisely because their authors had not complied with the formalities in US law — Prokofiev’s Classical Symphony and Peter and the Wolf, Shostakovich’s Symphony 14 and Piano Concerto, Stravinsky’s Petroushka, Hitchcock’s 1932 film “Number 17″, . . . In 1994, as part of the Uruguay round of the GATT (it’s complicated . . . ), the US implemented Article 18 of Berne in the “Copyright Restoration Act,” restoring copyrights in foreign works that had fallen into the public domain in the United States (at least, if they had fallen into the public domain for reasons other than the expiration of their copyright term.

The case has an interesting posture, which bears on what it means. Plaintiffs (represented by the Center for Internet and Society at Stanford Law School — good work!!!) asserted that the restoration of copyright in works that were in the public domain abridged the First Amendment’s free speech guarantee. It’s a strong argument, for various reasons. Once a work is in the PD, anyone may use it in any way, for any purpose — copy it, publish it, perform it, . . . Restoring copyright clearly impinges on that — once copyright is restored, you can no longer perform Petrroushka in public without permission from the copyright holder. It’s hard to see how that does not at least raise an issue deserving of scrutiny under the First Amendment.

That is, however, what the district court initially held, in dismissing Plaintiff’s challenge: that the statute doesn’t even get any “heightened scrutiny” at all under the First Amendment. For this proposition, the court relied on Supreme Court’s opinion in Eldred v. Ashcroft (the copyright term extension case), where the Court did indeed seem to strongly imply that changes to copyright law, though they implicate “speech,” do not get any special 1st amendment scrutiny at all, because copyright already has the 1st Amendment “built in” to it (via the Fair Use defense, the exclusion for “ideas,” and other things like that). implications. So the district court here thought it was following Eldred - but the 10th Circuit reversed and remanded. It said that copyright law CAN implicate the 1st Amendment and trigger heightened scrutiny, at least when congress changes the “traditional contours of copyright protection” in some fundamental way. And that, the court said, is precisely what had happened here.

So back the case goes to the district court, which, heeding the 10th’s Circuit command, imposes heightened (“intermediate”) scrutiny — does the measure “advance important governmental interests unrelated to the suppression of free speech” without “burdening substantially more speech than necessary to further those interests.” — and finds that the statute does not meet the test. Back it goes to the 10th Circuit, where a different panel reverses again – holding that, while intermediate scrutiny IS appropriate, the statute here meets it.

Dollars to donuts says that the Supremes affirm — they have not shown themselves to be very friendly to these First Amendment arguments in the copyright context (though with Breyer, J., who has shown an interest in the First Amendment constraints on copyright, dissenting)). In fact, probably the only question that will really be interesting here is whether the Court endorses the notion that there is EVER a time when First Amendment scrutiny will be applied to a modification of copyright law, or whether Eldred really does stand for the principle that copyright law is, in some fundamental sense, immune from First Amendment attack. I’m hoping they do (though afraid that they may not).