Colorado District Court: Copyright Act Violates First Amendment (Golan v. Holder)

In stunning news, the U.S. District Court for the District of Colorado has granted summary judgment in Golan v. Holder, determining that parts of the Copyright Act (specifically 17 U.S.C. §104A) violate the First Amendment. The portion in question is in regards to restorations of copyright for foreign works that have previously fallen into the public domain. Under the Berne Convention (Art. 18), such restoration would be required, but the Golan court today holds that the First Amendment trumps such treaty obligations due to interference with amendment’s free speech clause.  Here’s an interesting snippet from Judge Babcock’s decision:

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation’s own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated

Plaintiffs’ vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech. Accordingly–to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain–Section 514 is substantially broader than necessary to achieve the Government’s interest.

On the basis of the record before the Court, I conclude no evidence exists showing whether the Government’s two additional justifications for implementing Section 514–Section 514 helps protect the copyright interests of United States authors abroad; and Section 514 corrects for historic inequities wrought on foreign authors who lost their United States copyrights through no fault of their own–constitute important Government interests, or whether Section 514 is narrowly tailored to meet those interests.

By the way, if the case sounds familiar but something about the name seems off, you may remember this particular case from Golan v. Ashcroft and Golan v. Gonzales, dating back to 2001. It’s the same case, on remand. The full decision can be read at the above link in text format. For the official PDF (courtesy of Stanford University’s Cyberlaw site), check here.

The case is sure to get some major law review coverage, because it raises all sorts of amazing conflicts-of-law issues between the Constitution and international treaty, and it opens up a new line of attack on copyright power beyond what the Supreme Court has defined in Eldred v. Ashcroft.

So why is this important to gamers? Most games are nowhere close to the terms of their copyright protection running out. Where this becomes important to gamers is the stories involved. For example, J.R.R. Tolkien works were covered in this series of cases, as were those by H.G. Wells.

Lawrence Lessig, getting some justice after losing on Eldred, had this to say:

I am very happy and very very proud to report a big victory in Golan v. Holder. As you may recall, Golan was filed at the time Eldred v. Ashcroft was in the Supreme Court. The case challenged the URAA, which restored the copyright to works in the public domain. We lost in the district court, but then the CA10 reversed that decision, holding (for the first time ever) that the First Amendment restrained Congress when it changed the “traditional contours of copyright” beyond those explicitly mentioned in Eldred (idea/expression dichotomy and fair use). The CA10 sent the case back down to the district court, and Friday, Judge Babcock granted our motion for summary judgment, holding that the URAA violated the First Amendment to the extent it restored copyright against parties who had relied on works in the public domain.

We’ll keep this covered for the inevitable appeal, as it is highly likely that the U.S. government will appeal this up to SCOTUS if necessary.

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