U.S. District Court Judge Rules Provision of Copyright Act Violates First Amendment

May 2009

All areas

A federal judge in Colorado has upheld a challenge to the United States Copyright Act brought by Stanford Law School’s Center for Internet and Society. U. S. District Court Judge Lewis T. Babcock of Colorado ruled in Golan v. Holder that section 104A of the Copyright Act violates the First Amendment insofar as it suppresses parties’ rights to keep using works they began using when those works were in the public domain. The lawsuit was originally filed in 2001 on behalf of several music conductors, sellers of classical music and film distributors who rely upon works in the public domain for their trade. These works were produced by foreign authors and for varying reasons lost copyright protection in the U.S. prior to the enactment of section 104A, which Congress passed in 1994 in an effort to comply with the Berne Convention, an international treaty protecting copyright owners’ rights. Section 104A restored copyrights to the foreign authors and removed the works from the public domain, forcing the plaintiffs—who previously used the works royalty-free—to either pay to use the works or cease using them. In a 2005 ruling, Judge Babcock initially rejected the First Amendment argument. However, upon appeal, the U.S. Court of Appeals for the Tenth Circuit reversed this decision, finding it is a “bedrock principle of copyright law that works in the public domain remain there” and holding that section 104A’s removal of works from the public domain “altered the traditional contours of copyright protection in a manner that implicates plaintiffs’ right to free expression.” The appeals court remanded the case to the district court to determine whether section 104A is consistent with the First Amendment. Upon reconsideration, Judge Babcock ruled that section 104A’s suppression of parties’ rights to use works they had exploited while the works were in the public domain violated the First Amendment because the statute “is substantially broader than necessary to achieve the Government’s interest” and Congress could have complied with the Berne Convention “without interfering with Plaintiffs’ protected speech.” “As far as I know, this is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government’s ability to erode the public domain,” said Anthony Falzone, executive director of the Fair Use Project and lecturer in law at Stanford Law School, who was co-counsel on the case with Professor Lawrence Lessig. “People who used these works while they were in the public domain have the First Amendment right to keep using them.”. “The district court has made meaningful a very sensible balance struck by the Supreme Court in Eldred v. Ashcroft, which requires Congress to test radical changes from our tradition against the standards of the First Amendment,” said Lawrence Lessig, Founder and Co-director of the Center for Internet and Society, Director of the Fair Use Project and the C. Wendell and Edith M. Carlsmith Professor of Law. “The framers of our constitution struck an important balance between copyright protection and the public domain. It is enormously important that the court here has acted to protect that balance.”

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