David Nimmer on Golan v. Gonzales
The Copyright Act's restrictions on untrammeled speech have co-existed for centuries with the First Amendment's command that “Congress shall make no law … abridging the freedom of speech.” Even after the potential conflict was first noted in the scholarly commentary in 1970, courts have stiff-armed First Amendment-based challenges to the Copyright Act, as amended. That blanket deference ended with the Tenth Circuit's recent ruling in Golan v. Gonzales. In discussing Golan and its implications, David Nimmer writes:
Although not per se striking down the Uruguay Round Agreements Act, the court reversed the ruling below upholding it. This case therefore imports a whole new sensibility.
Judge Henry began with the fact that [Eldred v. Ashcroft] commanded respect for “the traditional contours of copyright protection” without defining what those are; neither could other readily available authority, or even the parties to the litigation, shed light on the meaning of those contours. Under Eldred itself, such contours include the idea-expression dichotomy and the fair use defense. But is there more? The decision approaches that crucial inquiry in a sophisticated manner.
An essential ingredient of copyright protection, going back to time immemorial, is its sequence—statutory protection begins, continues over a course of years, and then ends. The number of years of protection has expanded from 14 years to 28 to 56 to 75 years under the 1976 Act, and ultimately to 95 years under the Sonny Bono Copyright Term Extension Act. But what has remained constant since the start is the ultimate fate of every copyrightable composition: After those years of protection ended, it would be consigned to the public domain. Once in the public domain, anyone could copy the entirety of the formerly copyrighted expression. Innumerable copyright cases have reaffirmed that proposition over the years.
But that tradition of one-way public domain expiration, dating back to 1710 in and 1791 in the , came to an end in 1995, with enactment of the Uruguay Round Agreements Act. The very essence of 17 U.S.C. § 104A, which that amendment added to the Copyright Act, is to take works that are in the U.S. public domain and resurrect their copyright status.
(citations omitted.)