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Equal Protection For Shostakovich? Justices Question Lawyers In Copyright Case

Publication Date: 
October 05, 2011
The Chronicle of Higher Education
Marc Parry

A quote by Anthony Falzone, Executive Director of the Fair Use Project, is featured in the below Chronicle of Higher Education article by Marc Perry on Golan v. Holder and how when Congress removed works from the public domain and place them back under copyright protection in 1994 "it devalued the public domain."

Chief Justice John G. Roberts Jr. invoked Jimi Hendrix. Justice Ruth Bader Ginsburg trumpeted Dmitry Shostakovich. And Justice Stephen G. Breyer plucked out Jewish music from the 1930s.

Those musicians and other long-gone creators made cameo appearances in the marble-and-velvet arena of the U.S. Supreme Court on Wednesday, as the justices heard oral arguments in a high-stakes copyright case whose outcome will affect much of academe, dictating what materials scholars can use in books and courses without jumping through legal hoops.


A lawyer for the plaintiffs, Anthony Falzone, argued on Wednesday that lawmakers violated the U.S. Constitution's First Amendment and Copyright Clause by yanking away millions of works that had been public property for years. For the lead plaintiff, Lawrence Golan, a University of Denver music professor, that step limited his orchestra's ability to perform canonical pieces by composers like Shostakovich, Stravinsky, and Prokofiev. The law he wants to overturn has also hobbled libraries' efforts to digitize and share books, films, and music.


What's wrong, among other things, Mr. Falzone said, is that the restoration was "unprecedented in American copyright law," and that it devalued the public domain because it means Congress might yank stuff out of it any time.