The U.S. Supreme Court has heard arguments over Golan v. Holder (No. 10-545), a key copyright case — discussed in a previous post here — over Congress’s 1994 decision to restore protection to a vast body of foreign works that had already gone into in the public domain (audio included here). This matter stems from the U.S. signing of the Uruguay Round, an attempt by American officials to align with the nation with international copyright system and bolster intellectual property protection globally.
The case has attracted considerable media attention because of the names and works involved, including compositions by Dmitri Shostakovich and Igor Stravinsky, art by Pablo Picasso and books by HG Wells and movies by Alfred Hitchcock. The academic world also sees a huge stake for itself in Golan, which, advocates have said, could increase costs and curb the availability of materials for study by students and teachers.
To recap: Petitioners, as represented by Anthony Falzone of the Stanford Center for Internet and Society argued that Section 514 of the Uruguay treaty violates the copyright clause and the First Amendment (their brief is here). Solicitor General Donald Verilli contended that Congress had the right to ratify the treaty and help U.S. works receive increased, global copyright protection. (The U.S. brief is here).
Scrutinize the transcript of the oral arguments and the questions posed and it appears that the justices favor the underlying policy — seeking to extend copyright protection to the foreign works as part of a larger move to get the U.S. in greater accord with international measures.
Justice Ruth Bader Ginsburg focused on Falzone’s central argument — that the 1994 treaty let Congress “set a second limit, long after the first one had come and gone” and, therefore, presented a potential limitless protection. Falzone replied by underscoring history –that Congress in more than two centuries “never [has] removed anything from the public domain that was placed upon there based on lack of national eligibility.”
Justice Sonia Sotomayor pointed to the 1790 Act, asserting that it provided a historical precedent in which Congress, effectively, removed works from the public domain and granted them copyright protection.
As for Justice Antonin Scalia, he contested Falzone’s argument that the 1994 congressional action failed to promote the progress of science or the useful arts. And while Sotomayor questioned the petitioner’s contention that the treaty created an incentive for foreign authors to sell their work, Falzone clarified under Scalia’s questioning that the law “does not incentivize anybody to create anything and it only restricts the circulation of things that once circulated freely.”
Scalia’s inquiries as to whether the law promotes the progress of science or the useful arts continued with the government’s chief advocate, who answered that there “is no textual limit in the copyright clause that would preclude Congress from enacting this statute.” Verrilli also told the justices that First Amendment scrutiny should not apply.
But Chief Justice John Roberts was not to be persuaded, returning to First Amendment concerns, noting these have an allure at an “intuitive level” since “one day I can perform Shostakovich [then] Congress does something [and] the next day I can’t.” Verrilli argued that there was no precedent for applying such First Amendment thinking to copyright.
Roberts posed a hypothetical, in which rock guitarist Jimi Hendrix’s legendary rendition of the national anthem could be covered by copyright — and be protected by the First Amendment. Verrilli replied that the 1994 treaty provides protections and accommodations for derivative works.
He urged the court to impose a rational scrutiny of this copyright case, rather than subjecting it to higher First Amendment tests, noting that the justices should take into account “seriously” Congress intent — to better the U.S. role in international copyright protection.
The arguments attracted major media coverage, including reports or posts from the New York Times and Huffington Post. Some experts see a 4-4 split decision coming in this matter (Justice Elena Kagan, who previous to her appointment served as U.S. solicitor general, recused herself) , while others forecast failure for the petitioners. The current forecasts call for a ruling in June, 2011. For more details on the case and amicus briefs, check out SCOTUSblog.