A Good and Bad Week for Free Speech
On Wednesday thousands of scholars joined millions of people around the world in online protest of two proposed laws, the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). SOPA and PIPA would, in the view of many observers, authorize wide-ranging online censorship in the guise of stopping copyright infringement. So far, the protest appears to have been a success: Congressional support for the proposed laws is crumbling.
On that same day, the U.S. Supreme Court issued an opinion in a copyright case that may be just as important as SOPA and PIPA—and potentially just as harmful to the interests of scholars, librarians, and archivists. In Golan v. Holder, a group of conductors, educators, film distributors, and others challenged the constitutionality of Congress’s decision in 1994 to remove millions of books, films, songs, and other creative works, mostly foreign, from the public domain and “restore” their copyrights. It did so to conform to an international agreement, although it is far from clear that the move was required to put the United States in conformity. Some of the works taken from the public domain and put back under copyright are very famous; they include Prokofiev’s “Peter and the Wolf,” the symphonies of Shostakovich, Picasso’s “Guernica,” and the English films of Alfred Hitchcock.
The Golan plaintiffs argued that Congress lacked the power under the Constitution’s Copyright and Patent Clause to re-copyright those works, and also that the move violated the First Amendment. How? By imposing copyright burdens on free speech where none had existed before.
In a 6-2 opinion written by Justice Ruth Bader Ginsburg (with Justices Stephen G. Breyer and Samuel A. Alito Jr. dissenting), the court found that “[n]either the Copyright and Patent Clause nor the First Amendment … makes the public domain, in any and all cases, a territory that works may never exit.”
I should make clear that I have no claim to objectivity in this case. I was one of the lawyers who represented the plaintiffs in Golan, and, more to the point, I have long believed that copyright restoration is both unlawful and bad policy. The court’s opinion in Golan hasn’t convinced me otherwise.