Appeals Court Finds Copyright Statute Burdens Free Speech

In Golan v. Gonzalez, the 10th Circuit upheld dismissal by a lower court of a challenge to the Copyright Term Extension Act. That law extended copyright protections 20 years, meaning music would be copyrighted for 70 years after an artist’s death. But the court found merit in plaintiffs’ challenge of the Uruguay Round Agreements Act (URAA) which extended those protections to foreign works, some of them in the public domain. Under the laws, artists must pay royalties to use or perform copyrighted works by foreign artists, such as the oft-cited example of composer Sergei Prokofiev’s “Peter and the Wolf.” In many cases, cost would prohibit use of that piece and other important works, court noted.

The three-judge panel said that in removing certain works of literature, music and art from the public domain Congress altered “the traditional contours of copyright protection in a manner that implicates plaintiff’s right to free expression.”

Stanford University’s Center for Internet & Society (CIS) filed the suit in 2001 on behalf of a University of Denver conductor and others, challenging the constitutionality of the Copyright Term Extension Act and URAA. Among their effects, the laws, restored copyright protection for certain works that had fallen into the public domain; this puts an unfair burden on those wanting to perform or otherwise make fair use of them, CIS argued. “While this decision does not invalidate the URAA, it does hold that the URAA” and future copyright laws “must pass either strict or intermediate First Amendment scrutiny on remand,” noted Stanford University Fair Use Project Executive Director Anthony Falzone on the project blog. A three-judge panel said the plaintiffs, including “orchestra conductors, movie distributors and others” relying on works of art and music in the public domain “have shown sufficient free expression interests in works removed from the public domain to require First Amendment scrutiny,” the panel wrote.

The decision was “a momentous victory,” said Falzone. University of Virginia Associate Professor of Law Chris Sprigman agreed, telling us that the case means that “we now know that copyright is not a First Amendment-free zone,” he told us. “We're going to be arguing about First Amendment constitutionality of copyright changes,” Sprigman said. “The Internet makes copyright really important because everything you do on the Internet involves making a copy, not like in the old pre-Internet world.” Now that copyright law seems to have been promoted to “royal status, we need to think about its effects,” he said. The government may still seek an en banc rehearing by the 10th Circuit, Sprigman said.

What’s most important is that the ruling also may tee up the question of copyright law and free speech for Supreme Court review, plaintiff and Stanford University Professor Larry Lessig told us. A few months ago, the Ninth Circuit rejected a similar First Amendment argument in Kahle v. Gonzales, in which two archives asked the U.S. District Court, San Francisco, to find unconstitutional on First Amendment grounds the Copyright Term Extension Act (as in Golan) and the Copyright Renewal Act, which afforded similar protections. In that case, CIS argued that the two laws together create an “effectively perpetual” term for works first published after January 1, 1964, and before January 1, 1978. That is a burden on free speech, CIS said. But in that case, the Ninth Circuit ruled that no further First Amendment scrutiny was required. Tuesday’s ruling conflicts with that decision, Sprigman said. The circuit split improves chances for Supreme Court review in Kahle, he said. The Kahle plaintiffs already have filed a writ of certiorari; the U.S. has until Sept. 13 to respond.

The International Coalition for Copyright Protection didn’t comment by our deadline and the case predates the Copyright Protection Alliance, its director told us. - Alexis Fabbri