Big victory for the public domain

Sometimes big victories can happen even in small forums. On Friday a district court in Colorado — the lowest level of court in our federal system — issued a decision with big time implications.  I have written several times before about the interaction of copyright law and the First Amendment protection of free speech, and in an opinion in the case of Golan v. Holder, Judge Lewis Babcock has ruled a portion of the Copyright Act unconstitutional because of a conflict with the guarantee of free speech.

The case involves a fairly technical challenge to a fairly technical provision of the law.  The Uruguay Round Agreements Act (1994), purporting to implement agreements made about international IP protections at the World Trade Organization, restored copyright to foreign works that had already fallen into the public domain in the US because their copyright holders had failed to observe the formalities that the US required up until 1988.  The result was that works that had previously been free for anyone to use suddenly were protected, and people who had used those works for years — like a community orchestra that played the music of Prokofiev — would be liable to infringement suits after a one-year grace period.

The challenge brought against the URAA claimed that taking back a work that had been free to use “altered the traditional contours of copyright protection” and therefore (based on some language from a Supreme Court decision in 2003) was subject to “ordinary First Amendment scrutiny.”  This part of the claim was upheld at a higher level, by the Tenth Circuit Court of Appeals, in 2007.  On Friday, the district court applied that First Amendment scrutiny and determined that the URAA was not narrowly tailored to achieve an important government interest and, therefore, was unconstitutional.

At least two aspects of this decision make it such a big deal.  First, it is one of the first times a court has found an actual conflict between copyright protection and free speech.  As I have argued before (repeating remarks made by Anthony Falzone, who was one of the lawyers for the plaintiffs in Golan), copyright, as a monopoly over expression, seems to create an obvious tension with free speech.  In the past courts have said that fair use and the idea/expression dichotomy are sufficient insurance against unconstitutional suppression of speech, but now, in a fairly unusual set of circumstances, a court has found that even with those safeguards, provisions of the copyright law can go too far.

Second, this ruling makes clear that the public domain, that “commons” of material that is free for all to use and is the raw material for so much new creation, is an aspect of copyright protection itself that must be respected.  If the URAA stood unchallenged, the potential for the government to revoke freedoms Americans already enjoyed in using pd expression would always exist.  By affirming that the promise of the public domain is a part of the traditional contours of copyright, the court has given copyright users their first reason to cheer in a long time.

Given the importance of this case, it is certain to be appealed.  As noted above, the 10th Circuit has already considered one aspect of it, so the prospects on appeal seem favorable.  But the government will assuredly fight this ruling, since it will force them to rewrite a provision of the law arguably needed to conform with international agreements.  There is no doubt that the law could be rewritten successfully; there are models elsewhere in the world of restored copyrights that respect the “reliance interests” of users that arose prior to restoration.  As challenges proceed, however, it will be interesting to see if the argument made by plaintiffs that, in the US and because of our relatively unique First Amendment, American law cannot ever restore any copyrights after works have passed into the public domain, regardless of treaty agreements, makes any headway.

There is a discussion of this decision here, and the order from Judge Babcock is here.