On my first day of my new position as civil liberties director at the Electronic Frontier Foundation, the U.S. 10th Circuit Court of Appeals dealt my previous employer, the Stanford Center for Internet and Society, a fantastic victory. The court's ruling in Golan v. Gonzales is also a triumph for the First Amendment and for the overwhelming majority of creators.
In Golan, we challenged section 514 of the Uruguay Round Agreements Act, or URAA, which removed thousands of books, films and musical compositions from the public domain. We argued that this violated the First Amendment because people could no longer use these works for their own creative expression. As an example, our community orchestra and conductor clients could no longer freely play compositions to which they had purchased the sheet music and learned, and our film collector and preservationist clients could no longer show or make restored copies of films in their archives.
Our argument depended on the case of Eldred v. Ashcroft. In Eldred, the Supreme Court affirmed Congress' 20-year extension of already-existing copyrights because it found a long history of copyright extensions. But not all copyright laws are immune from review. Copyright regulates speech by limiting what subsequent speakers can do with a creative work. If Congress changes copyright's "traditional contours," courts must conduct a more searching First Amendment review to ensure that those changes do not overly burden free expression in an unjustified manner.
In Golan, we argued that removing works from the public domain, as the URAA did, was a change in the traditional contours of the law. The government defended the URAA arguing that copyright laws triggered First Amendment concerns only if Congress either limited fair use or began to regulate ideas rather than just modes of expressing those ideas. We successfully argued that those two limits on copyright protection were some but not the only ways in which traditional copyright law harmonizes with constitutional free-speech protections, and that other changes -- including depredation of the public domain -- were equally unacceptable.
Having agreed with our position that there are more than two "traditional contours" and that an inviolate public domain is one of them, the 10th Circuit sent the Golan case back to the District Court to determine whether the URAA goes too far in burdening speech.
Stanford CIS has another case about the constitutional limits of copyright protection, Kahle v. Gonzales, which we lost in the 9th Circuit and are now seeking a review of before the Supreme Court. Both Golan and Kahle seek to define what "traditional contours" means.
In Kahle, the issue is Congress' change from a self-selecting system of copyright, where people had to register and give notice to indicate that they wanted copyright protection, to an indiscriminate system where every napkin doodle is copyrighted and people are forced to license or dedicate their works to the public domain, or make some other indication that they do not want copyright protection. This change from an opt-in to an opt-out system has produced generations of "orphan works" -- creative works that are still under copyright, but for which owners are absent or prohibitively expensive to find. People who want to make use of an orphan work cannot locate the copyright owner to obtain permission. These would-be creators' fear that someone will appear years later alleging copyright infringement chills new creative uses.
The 10th Circuit's decision in Golan should make it more likely that the Supreme Court will grant a review and hear the Kahle case, because there is now a split between two federal circuit courts regarding the First Amendment's application to Congress' copyright lawmaking.
The prospect of arguing this issue before the Supreme Court is both thrilling and an immense responsibility. Our hope is that the Supreme Court affirms its holding in Eldred that Congress, in considering copyright legislation, must take free speech concerns to heart, and that when copyright laws deviate from tradition, courts must actively ensure that these new laws do not overly burden free speech.
Congress and creators also need guidance from the Supreme Court about how much breathing room we are entitled to in a digital world, where every transmission is a copy and yet everyone can be a speaker or an artist. For now, the First Amendment is alive and well in the 10th Circuit.
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Jennifer Granick is Civil Liberties Director at the Electronic Frontier Foundation.
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