[Infowarrior] - Lessig: A big victory: Golan v. Gonzales

[Richard Forno]

A big victory: Golan v. Gonzales

September 5, 2007 4:05 AM - comments (10)

http://www.lessig.org/blog/2007/09/a_big_victory_golan_v_gonzales.html

The 10th Circuit decided our appeal in Golan v. Gonzales today. In a
unanimous vote, the Court held that the "traditional contours of copyright
protection" described in Eldred as the trigger for First Amendment review
extend beyond the two "traditional First Amendment safeguards" mentioned by
the Court in that case. It thus remanded the case to the District Court to
evaluate section 514 of the Uruguay Round Agreements Act (³URAA²) under the
First Amendment, which removed material from the public domain.

This is a very big victory. The government had argued in this case, and in
related cases, that the only First Amendment review of a copyright act
possible was if Congress changed either fair use or erased the
idea/expression dichotomy. We, by contrast, have argued consistently that in
addition to those two, Eldred requires First Amendment review when Congress
changes the "traditional contours of copyright protection." In Golan, the
issue is a statute that removes work from the public domain. In a related
case now on cert to the Supreme Court, Kahle v. Gonzales, the issue is
Congress's change from an opt-in system of copyright to an opt-out system of
copyright. That too, we have argued, is a change in a "traditional contour
of copyright protection." Under the 10th Circuit's rule, it should merit 1st
Amendment review as well.

I suspect this decision will weigh heavily in the Supreme Court's
determination whether to grant review in the Kahle case. It also nicely
demonstrates the wisdom in this part of the Eldred decision (don't get me
started on the Progress Clause part of the decision...) The rule of Eldred,
as interpreted by the 10th Circuit (and by us) is that Congress gets a
presumption of First Amendment constitutionality when it legislates
consistent with its tradition. But when it changes that tradition, its
changes must be scrutinized under the First Amendment. This is an
interesting constitutional argument -- echoing some of Justice Scalia's
jurisprudence, as we argue in the cert petition. And it also makes a great
deal of sense: practices unchanged for 200 years are less likely to raise
First Amendment problems (but see ...); but whether or not immunity is
justified for them, it is certainly not justified for practices that deviate
from Congress' tradition.

The opinion by Judge Henry is well worth the read. The argument was one the
best I have seen. All three judges knew the case cold. It is a measure of
how good courts can be that they took such care to review this case.

Thanks to everyone on our team that made this possible. First the clients --
Lawrence Golan, the Richard Kapp Estate, S.A. Publishing, Symphony of the
Canyons, Ron Hall and John McDonough (all of whom use and build upon
material in the public domain; all of whom were negatively affected by
Congress's removal of material from the public domain). But also and
especially to the gaggle of fantastic lawyers who supported us in the case
-- the Denver firm of Wheeler, Trigg, Kennedy, and Stanford CIS lawyers
Chris Sprigman, Ed Lee, Jennifer Granick, David Olson, David Levine, Colette
Vogel, Elizabeth Rader and Lauren Gelman (Tony Falzone came on afterwards).