SCOTUS Hears Golan v. Holder Oral Arguments
After a year of studying Supreme Court cases in law school, I was thrilled to be able to visit the Court on October 5th to hear oral arguments in the case of Golan v. Holder.
In granting certiorari in this case, the Supreme Court seeks to answer two questions: first, whether Congress is prevented from removing works from the public domain by Article I, Section 8, Clause 8 of the Constitution of the United States, also commonly known as the Copyright Clause. The Copyright Clause states that Congress shall have the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” and second, whether section 514 of the Uruguay Round Agreements Act violates the U.S. Constitution. For an in-depth overview of this case, read staffer Alexander Bussey’s recent article on the IPLJ.
The questions presented in Golan v. Holder capture one of the essential conflicts at issue throughout the history of Copyright law: how to achieve a balance between protecting authors and their creations and maintaining a rich public domain. The Constitution acknowledges that such a balance is necessary for the promotion of progress, and I was eager to hear what the Attorneys for both parties would argue.
Anthony Falzone, the attorney for the petitioners, began his argument by stating definitively that section 514 of the URAA violates the Copyright Clause and the First Amendment. Falzone argued that by placing the foreign works in question in the public domain, Congress had originally set the length of protection for those works at zero, and so cannot now decide to endow those work with protection.
Yet Justice Ginsberg was quick to interrupt Falzone, and seemed skeptical of Falzone’s overall argument. From Ginsberg’s questioning it would seem that she believed section 514 does not violate the Copyright Clause, as the foreign works that were taken out of the public domain by the URAA were never before given their “limited time” of copyright protection.
While both Ginsberg and Falzone had strong support for their arguments, it was a comment by Falzone that persuaded me that he was correct in his interpretation. Falzone argued that the “limited time” requirement implies that Congress must always pick a date for the expiration of copyright in a work, whether that is 28 years of protection, or no protection at all. Ultimately it would seem as though the result of Ginsberg’s interpretation would create uncertainty about which works were truly in the public domain and which were not. In my study of copyright law so far, it seems to me that such uncertainty would certainly not “promote the progress of science.”
In his closing, Falzone only had enough time to briefly mention his First Amendment argument that section 514 essentially takes speech rights from the public, specifically from those in the public who had been performing and adapting artistic works that had been in the public domain, and makes them the private property of a few.
Perhaps because Justice Ginsberg had already established herself as Falzone’s biggest critic, it came as no surprise that Solicitor General Donald Verrilli, attorney for the respondents, opened his argument by expressing how fervently he agreed with Ginsberg’s understanding of section 514. Verrilli further explained the importance of enacting section 514 as a matter of policy, as the passage of the URAA was intended to bring U.S. copyright laws into compliance with international standards. Justice Scalia, however, rejected this policy argument and stressed that compliance with an international treaty does not overcome the immediate issue of whether or not section 514 is constitutional.
Verrilli also received many questions from the Justices regarding how section 514 would encourage the development of new works. Few of the Justices seemed convinced by Verrilli’s argument that by ensuring protection for certain foreign works, Americans will be better assured that their own works will receive copyright protection in foreign countries. Chief Justice Roberts added that Falzone’s First Amendment argument was appealing. Roberts was concerned about the effect that section 514 has on those authors who chose to create derivative works from the foreign works that were once in the public domain but are now given copyright protection under the URAA. Verrilli seemed to satisfactorily address this issue by explaining that there were protections for authors of such derivative works built into section 514, such as the “fair use doctrine”.
Verrilli ended his argument on a rather strong note by referencing Oliver Evans, an American inventor, who in the early 1800s successfully petitioned Congress for a renewal of a patent that had already expired. This anecdote exhibited the fact that Congress has previously renewed expired protection for intellectual property, that President Jefferson signed off on the renewal of that protection, and that the Supreme Court upheld the renewal. Although the Justices did not interrupt Verrilli in his closing, the intense questioning throughout the oral arguments makes it extremely difficult to predict what the Court will ultimately decide.