District Court: restoration of copyright in public domain foreign works violates First Amendment

This is major: a Federal District Court in Colorado has held unconstitutional a portion of the Copyright Act, holding that 17 U.S.C. §104A, which restored copyright in certain foreign works that had previously fallen into the public domain, cannot survive First Amendment scrutiny. The government defended the statute by arguing that such restoration was required by Article 18 of the Berne Convention, the international copyright treaty that the US joined in 1988, but the court in Golan v. Holder today held that the First Amendment trumps such treaty obligations, and that the statute impermissibly interferes with the free speech rights of the plaintiffs, "artisans and businesses that rely upon works in the public domain for their trade."

The same District Court had previously upheld Section 104A against First Amendment challenge, but was ordered to reconsider by the Tenth Circuit in Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007), which held that the removal of works from the public domain "must be subject to First Amendment review" because "§ 514 has altered the traditional contours of copyright protection in a manner that implicates plaintiffs’ right to free expression." That "traditional contours" language comes from Justice Ginsburg's opinion in Eldred v. Ashcroft, 537 U.S. 186 (2003), in which the Supreme Court held that copyright law is not normally subject to First Amendment scrutiny where "Congress has not altered the traditional contours of copyright protection." By removing works from the public domain, Judge Lewis Babcock held in today's opinion, Congress indeed "altered the traditional contours of copyright protection" in such a way that violated the First Amendment.

According to Anthony Falzone of the Stanford Fair Use Project, which has led the challenge to Section 104A, this is "the first time any court has held a copyright law violates the First Amendment." (Has any copyright law been held unconstitutional for any other reason? None comes immediately to mind.) But the fight over this statute is far from over. As I've noted in another context, administrations of all stripes consider themselves obligated to defend the constitutionality of virtually all federal statutes, and this administration will surely head back to the Tenth Circuit, and, if unsuccessful there, to the Supreme Court -- where Justice Ginsburg may get to explain exactly what those "traditional contours" actually are.