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Court To Consider What Happens When Copyright And Free Speech Collide

Publication Date: 
September 06, 2007
Ars Technica
Nate Anderson

Professor Lawrence Lessig and his work on Golan v. Gonzales is referenced in an Ars Technica article:

Does the US Congress have the authority to stuff public domain works back inside the copyright closet? It did so back in 1994 when it implemented the Uruguay Round Agreements Act (URAA) to bring US intellectual property law in line with that of other countries.


After signing URAA as part of a global round of trade talks, the US agreed to provide copyright protection for foreign works that was at least equal to the protection those works received in their countries of origin. Before URAA was passed, foreign works still received copyright protection in the US, but only on US terms. This meant that works began to leave copyright and enter the public domain in the US even though some were still granted copyright protection in their home countries. After signing URAA, these works reverted into copyright here.

Lawrence Lessig and a team from Stanford have been arguing in Golan v. Gonzales that Congress overstepped its authority when it did this. A federal court disagreed and issued a summary judgment against Golan, a music teacher, and the other plaintiffs. Lessig appealed the case to the Tenth Circuit Court of Appeals, which yesterday handed down its ruling, one that Lessig calls "a very big victory."


But the Tenth Circuit did agree that giving copyright protection to works already in the public domain could pose problems from a First Amendment perspective. In Eldred, the justices noted that Congressional actions would only come in for First Amendment review if they "altered the traditional contours of copyright protection." Lessig seized on this phrase, arguing that putting public domain works back under copyright was unprecedented in US law.

The Tenth Circuit generally agreed, which meant that the justices opened the door for a review of URAA's legality on First Amendment grounds. What does freedom of speech have to do with copyrighted and public domain materials? The court pointed out in its decision that Golan and other plaintiffs are already using these public domain works to perform "speech" of their own and that they have already made plans to use public domain works in public performances in the future.


Now, this doesn't mean that Lessig, et al., have won. The case goes back to the district court, where judges are told to reconsider whether First Amendment concerns should invalidate parts of URAA. They may conclude that concerns about speech do not invalidate the law, and that will be the end of the matter.

Lessig is also taking part in another copyright case, Kahle v. Gonzales, which has now gone on to the Supreme Court. In that case, Lessig again used the "traditional contours" of copyright law defense, which has just been vindicated by the Tenth Circuit. Given that the Ninth Circuit already tossed out Kahle v. Gonzales, the Supreme Court will hopefully step in and clarify which appeals court was correct.