A recap of today's oral argument in Golan v. Holder, the copyright case of the year (decade?)
For your edification -- and hopefully, your enjoyment -- this writer (one Charles Colman of Charles Colman Law, PLLC) has boiled down today's oral argument before the Supreme Court in the copyright case of the year, Golan v. Holder. If you're interested in learning why I consider this case significant, check out my quotes in this article (by subscription) in Managing Intellectual Property.
For ease of reading and general enlightenment, Ive placed the attorneys' statements in italics; the Justices' statements are not italicized. The color green represents the Petitioner or a reflection of his views, red represents the Respondent (here, the U.S. government) or a reflection of its views, olive represents something "on the fence" or indeterminate, and blue represents either a link or something I find especially important, for reasons I may or may not reveal. Enjoy! (Or rather, um, edify.)
ANTHONY T. FALZONE, Stanford, CA, on behalf of Petitioners
[Falzone has barely begun to make his argument when he is interrupted by Justice Ginsburg. This isn't surprising, as Ginsburg penned the Court's decision in favor of the U.S. government in the somewhat similar case of Eldred v. Ashcroft (2003), including a passage stating that copyright protection does not conflict with the First Amendment to the extent the “traditional contours” of copyright law are respected. That passage takes center stage in the free speech portion of this case.]
- “So all that Congress is doing [with Section 514, the law at issue in this case] is giving Shostakovich works the same limited [times protection] as Aaron Copeland. And why does that violate the limited-time prescription [laid out in Article I of the Constitution]? . . . [T]he works we are talking about never got the first limit. . . . We are not talking about a case where you’ve had the protection, enjoyed it and then it expired, and then Congress says: 'We’d like – we like your work so much, we are going to give you another term.' What’s affected here are people who were unprotected. And Congress says we think they should have a limited time.”
- Falzone: "Many of the works that were restored here did get some time, 28 years, and were not renewed . . ."
- “They didn’t get the equivalent of what a U.S. author [would get.]”
- Falzone: “Congress may grant exclusive rights, but it can also say your limit is going to be zero, we decide that you’re not going to get any exclusive rights. . . . [T]he decision to make foreign authors ineligible is a decision that Congress has never gone back on. None of the exceptions the government points to remove anything from the public domain that was placed there based upon a lack of national eligibility. 200 years of history is crystal clear about – ”
- “I can understand your argument that the public domain is untouchable. I’m not sure I get that from the Constitution, that says to secure to authors for a limited time the exclusive right.”
- Falzone: “The operative language is the limited times restriction, and the limit it requires Congress to pick is the date at which all protection ends for good, and Congress has picked zero since 1790, and respected that decision, and that is no accident.”
- “[N]one of these copyrights have been extended beyond their expiration date. They just weren’t protected. . . . We are concentrating on what Congress did to bring us into compliance with the worldwide system and it’s saying: ‘We are giving a limited time to these authors’ . . . . They never had a limited time before.”
- Falzone: “[O]n the government's theory and even by the mechanism on which this statute operates, the government could reach back and protect de Tocqueville[’s works from the 1840’s.]"
- Under your theory, let’s say you have a copyright that expires on October 5th, okay? On October 4th, Congress could extend that for 25 years.” [Falzone: Yes.] “Right. But on October 6th, they couldn’t go back and extend it 1 day.”
- Falzone: "That’s exactly right, because the limit the Copyright Clause requires us to pick is an end date with permanent consequence.”
- “[T]he hypothetical -- and I think that's what Justice Ginsburg was responding to -- is you had a copyright, it expired, and now Congress wants to revive it. Isn't that different from not having had the opportunity at all, and being given a term to exploit your work and protect it?”
- Falzone: "The answer is no, it’s not different; and Congress treated those situations exactly the same in all 19 amendments over the span of 200 years.”
- "[In 1790, Congress] took a whole body of public works and gave them copyright protection the day they decided to pass the copyright law. So what are you doing telling us that there has never been a historical experience with Congress taking public works out of the public domain?”
- Falzone: "The 1790 Act did not remove anything from the public domain. The text is clear, because insofar as applied to works already printed, it presupposes existing copyrights explicitly in the text of the act."
- “Your reading of [the relevant] passage is different than mine. I think . . . it’s saying [that a work is protected under federal copyright as of 1790 whether you have or you haven’t] obtained state protection."
- Falzone: "[I]f the question is whether the first Congress intended to take anything out of the public domain in 1790, the answer is you simply cannot reach that conclusion, because everything contemporaneous with the first Congress, the history of the common law in Britain, decided by Millar v. Taylor and Donaldson v. Beckett, recognized common law rights in published works.”
- “If we disagree with your proposition, does your argument fail? If the historical work does not point to what you claim?”
- Falzone: “Not necessarily, because of course that was the first Copyright Act and Congress established a baseline. It had to start somewhere.”
- “It seems to me that [your theory] was rejected . . . in our most recent and earlier case on copyright.”
- Falzone: "No, No. Eldred [v. Ashcroft] said Congress can move the limit back [before] we reach it. But Eldred most certainly did not say that Congress is free to ignore the limit once we hit it, because if you can do that then you never know if you've reached the limit or not. The limit the Framers knew was the one in the --"
- “[I]s it your position that the public somehow owns what’s in the public domain?”
- Falzone: ". . . Yes, they own it, and this Court has recognized --"
- “The public domain doesn’t have any more substantive meaning other than to just express the conclusion that there is a limited time? . . . [That is] just a conclusion for the argument.”
- (Jumping in) “I think you gave an analogy to the statute of limitations, and I thought you were quite right about that. You can extend the statute of limitations before it’s expired, but once it’s expired it’s over. The problem with using that as an analogy is that there was a beginning . . . . You’re saying these people had no time and they may never have time.”
- Falzone: “They had no time because Congress decided that their works were going to be ineligible, and a limit of zero is one Congress has been setting since 1790, and respected consistently. . . . I think the wartime statutes and the other small handful of exceptions the government points to [if not entirely unconstitutional] fit quite well into a very limited exception for eligible authors who show nothing more than the familiar concept of excusable neglect, which has operated – again, in very narrow situations – to relieve people of the consequences of deadlines.”
- Falzone: "A statute that does nothing, like this one, does nothing but take old works out of the public domain without any impact on prospective incentives, cannot stimulate the creation of anything.”
- Falzone: “I don't see how it could.”
- “There may be another problem where there is a dispute between other countries and our country. And I will know that in the past, the United States has taken action looking out for -- for the interests of American authors. . . . That's an incentive. Now, it may be, as I think it was described in the court of appeals decision, a "meager" incentive. You may be more interested in other protections. But it's -- we haven't really required much more than that.”
- Falzone: "Perhaps. I mean, there's nothing . . . in the record before Congress here to reflect the fact they made any such conclusion.”
- Falzone: “[T]he problem here, if I can move a little bit to the First Amendment, is the mechanism Congress chose to use here. They chose to create that reward by taking away core public speech rights from the American public, and transforming them into somebody's private property –”
- "Well, that's what the copyright law permits . . . excluding things from the public domain, so long as in the process of doing it, you're furthering the arts.”
- Falzone: “Well -- but let me focus on the First Amendment problem. An ordinary copyright statute does not revoke the public's Federal right to copy and use works in the public domain. That is exactly the thing Congress refused to do 19 times over 15 200 years. And that's the huge departure from traditional contours of copyright protection that triggers First Amendment scrutiny here. And when you go to ask the First Amendment question, you can't ignore the mechanism Congress chose to use here, which is to take away public speech rights, and turn them into somebody else's private property. That was the explicit motivation of -- of the people who came before Congress and asked them to pass this statute. That is the justification the government –” [Interrupted; directed to Ginsburg:] “[D]ecisions of this Court going back to the 19th century refer to [works in the public domain] as public property.”
- (Picking up on – and attempting to refute – Sotomayor’s argument) “[A]fter this [law is passed], would [a foreign author] be more willing to send [his work] to the United States? And I take it your answer is no. The reason is because I can go and buy a copy and sell it in the United States even without this law. Is that right or wrong?
- Falzone: "I think that it could possibly incentivize him to bring it over to the United States, depending on how the statute worked.”
- "Well, isn't that the question? The question is, now that Smith has the same protection in the United States that Germany gave him, doesn't that give him an incentive to send his book to the U.S.? In thinking about that one, I thought: Not much, because I can go buy it today without this law and bring it to the United States and sell as many as I want."
- [Falzone readily adopts this position.]
- (Really responding to Breyer, through counsel) “Counsel, it might be his incentive to buy it or not, but the question is the author's incentive to sell it here. Those are two different incentives.”
- Falzone: "[T]he problem here is these authors are long gone. You can't incentivize them. These works are so old they are long gone. You can't incentivize anything that's happened so long ago.”
- (In a surprisingly liberal-sounding twist) “Of course, the assumption of this line of questioning, I suppose, is that the mere marketing in the United States of stuff that has already been created promotes the progress of the useful arts. I'm not sure it promotes the progress of the useful arts. It makes more money for the guy who wrote it, but doesn't incentivize anybody . . . to create art.”
- Falzone: “That’s right . . . It's not going to incentivize anybody to create anything, and it only restricts the circulation of things that once circulated freely.”
Donald B. Verrilli, Jr., Solicitor General, on behalf of Respondents
Verrilli: "[Falzone’s argument that Congress has] set the copyright term at zero [is not] a fair description of the situation [and it] obscures what Section 514 actually does and what Congress is all about here. Since 1891, Congress has concluded as a matter of copyright law that foreign works are entitled to the same protection as domestic works. The problem with respect to the authors that Section 514 covers is not that Congress set the copyright limit at zero, it's that as a matter of foreign relations, we did not have treaties with these individual countries. And what 514 does is remedy that problem. What 514 says is: With respect to a defined set of foreign authors, they get the remainder of the copyright term that they would otherwise have gotten, and nothing more, had they lived in countries [with treaties in place at the relevant time or] complied with the formalities that we used to enforce but no longer do to perfect and renew copyrights.”
- “Could Congress grant copyright protection to works that had lost that protection due to the expiration of the period that was provided for under, under previous law?”
- Verrilli: “ . . . We do think that there are significant limits in the text of the Copyright Clause that would restrict any ability Congress might have to do that. But one thing I think is important here is that Section 514 is not a statute in which Congress did that, and we would respectfully suggest that any assessment by this Court of whether Congress had that power should await a concrete context in which Congress exercises it, if it ever does.”
- [Sotomayor asks Verrilli to elaborate.] Verrilli: "Creating any copyright for a long-expired work like [those of Shakespeare, where there] really at that point isn’t an author in which you could vest the copyright [would] raise the problem that the Framers were addressing by restricting copyright to authors, which was to avoid the creation of patronage monopolies in which publishers who weren’t the authors could claim the exclusive rights of copyright.”
- “Doesn’t Section 514 provide copyright protection for works that were created by people who are long since dead?”
- Verrilli: “Yes, [but] what 514 does, Justice Alito, is to provide copyright protection to works of foreign authors whose works still have copyright protection in their own country, whether they are dead or alive. . . . And the reason it does so is to ensure our compliance with the Berne Convention . . . . By joining Berne, what we did was commit ourselves to the international standards. And by enacting Section 514 to implement the Uruguay Round Agreements in 1994, what we did was say to the world that we are going to ensure compliance in this country [and thereby promote the progress of science and the useful arts.”
- “General Verrilli, I do not find that an appealing argument. It seems to me Congress either had the power to do this under the Copyright Clause or it didn’t. I don’t think that powers that Congress does not have under the Constitution can be acquired simply by obtaining the agreement of the Senate, the President, and Zimbabwe. I do not think a treaty can expand the powers of the federal government. . . . It would be nice to know the reason for it, but you would still have to establish that it’s within the power of the federal government."
- Verrilli: "We completely agree with that, Justice Scalia. [But there] is no textual limit in the Copyright Clause that would preclude Congress from enacting this statute. . . . Now in Eldred, the Court did say, I think quite clearly, that there is no requirement under the Copyright Clause that a new financial benefit . . . cannot be granted to an existing work.” [Separately,] we don’t think First Amendment scrutiny applies here. To the extent it did, the why would matter there, and there is definitely a substantial interest on the part of Congress in ensuring compliance with Berne and getting protection for our works in Berne.
- “[T]he main difference is that in Eldred, there was a law that might, at least in principle, have elicited a new book. And in this case, by definition, there is no benefit given to anything at all that is not already created.”
- Verrilli: "I disagree . . . . [Section 514] creates additional incentives for authors today and going forward, because they know that there is a much greater likelihood that whatever intellectual property they create will be better protected in foreign countries as a result of our joining the Berne Convention."
- “As you also know from the 42 briefs [submitted in this case], there is a lot of argument that you could comply in other ways that are less restrictive.”
- Verrilli: "But for the fact that these individual authors lived in countries that didn’t have copyright relations with the United States, they would have the protection of our copyright law and they would have the term of copyright –”
- “Not necessarily. There are three categories [of works restored to copyright under Section 514: 1) those ineligible because of the author's citizenship at the time of creation, 2) certain sound recordings, and 3) works whose authors failed to comply with certain registration requirements.]”
- “[W]hen . . . read . . . historically in light of Macaulay, in light of the Statute of Anne, in light of going back to Venice and the copyrights, in light of going back to letters between Madison and Jefferson -- [copyright has always required incentivizing the creation of] at least one new thing. And here there is not one new thing.”
- Verrilli: “[Section 514] is part and parcel of joining Berne, and Berne gives protection not only to the previously created works but to newly created works, and it creates additional economic incentives in foreign [countries] by assuring better protection in foreign countries for newly created works. So it creates many, many more than one new work. [Further,] with respect to American authors, it's an implicit guarantee that they get the benefit not only of the foreign protection in existence at the time, but any expansion of foreign protection through adjoining treaties.”
- “General, there is something at least at an intuitive level appealing about Mr. Falzone’s First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can’t. Does that present a serious First Amendment problem?”
- Verrilli: “I think the question that I think Your Honor asked my friend [Falzone] was what about when Congress expands the scope of exclusive rights for existing works?”
- “Do you have an argument other than [that Congress has] done this before?"
- Verrilli: "[Yes: I am arguing that the Court should not engage in a First Amendment inquiry at all in this context, for practical reasons.] Once the Court gets into the business of First Amendment analysis, there is no stopping point, because all of the adjustments of the boundaries [of copyright] could [in principle] have the same kind of effect I think as the musical composition [revision to the Copyright Act had, by covering new types of works that had previously been available for use by the public. Further, even if the Court decides to apply First Amendment scrutiny here, Section 514 passes muster; the law's detrimental effect on the public is largely mitigated] because it has significant protections and accommodations for derivative works [created by the public before the works in question were restored to copyright and because] the Copyright Clause already contains very significant accommodations of First Amendment interests: the idea/expression dichotomy [and] fair use . . . . So if Congress were to try to extinguish fair use, I'd say yes, we'd have a First Amendment issue there. If Congress were to try to provide exclusive right in the ideas that are expressed, as opposed to the expression itself, yes, we would have a First Amendment issue there. [But not here.]”
- “[I]t seems to me what you're saying [is that] the First Amendment does not apply to the copyright area -- and that just can't be. . . . Can you cite me to some authority which says the First Amendment doesn't apply to a copyright?"
- Verrilli: “No. We don't say it doesn't apply, but Eldred – ”
- "There has -- there has to be a -- a test. Now maybe you say that it isn't immediate scrutiny; it's something else. But -- but certainly the First Amendment is implicated.”
- “[E]ven under rationale basis scrutiny, it seems to me that you run into Justice Breyer's concern that the government interest is vanishingly small when it comes to promoting progress under the Copyright Clause, so that [in light of] the interest weighed on the other side[, i.e.,] the restriction of free speech rights, it's hard to say that that's necessarily going to tip the balance in every case.”
- Verrilli (deflecting and trying to get back on track): “[I]f I could in my remaining time, I want to go back to the history that we started with, because I do think it is important [that] -- as a matter of text, I think it's clear -- there is no unyielding requirement that you cannot restore copyright to works in the public domain. I think the history really does bear that out [as Justice Sotomayor explained.] I don't think there is any doubt that when Congress enacted the Copyright Act of 1790, it made a conscious choice to take a different approach [from several states], to grant copyright protection to existing works, including many, many, many works that were freely available for exploitation in those states.”
- “Doesn't that show at most that retroactive protection can be granted when there is an enormous interest in doing so, namely, the establishment of the uniform copyright system at the beginning of the country, because if Congress had not done that and had said the alternative would be to say things can be copyrighted going forward, then you would have different copyright laws in all of the States?”
- Verrilli: "I don’t think so, Justice Alito . . . . My friend [Falzone, who is arguing for the Petitioner,] suggests that the 1790 Act was just a transition, but of course, the same thing is really true in an important sense of Section 514. It’s part of a tradition of transition of the United States into the international system . . . . And all of that points up to the wisdom of what this court said in Eldred, that within very wide margins, these are matters where legislative choice, these are policy calls that require the balancing of a complex set of interests, the drawing of a complex set of lines made even more complex by virtue of the fact that we are now trying to make a transition into full participation in an international system, which is of vital importance to protecting one of our most valuable economic exports, intellectual property.”
ANTHONY T. FALZONE, Stanford, CA, on behalf of Petitioners (rebuttal)
- [GINSBURG and Falzone have a drawn-out tussle over the import of the Berne Convention and Congressional findings made in the course of passing laws to implement that treaty.]
- Falzone: “The burden on speech that this statute imposes is remarkable [as Chief Justice Roberts was getting at in his hypothetical about musical performances and Jimi Hendrix.] This Court has recognized in case after case that there is a critical speech interest in publishing the work of another author, in showing a film created by another, or for that matter performing the work of another, so that the burden here is it took speech rights of 250 million Americans and turned them into the private property of foreign authors, all on the bare possibility that might put more money in the pocket of some U.S. authors.”
- [Falzone emphatically rejects Ginsburg’s suggestion that his theory] “rides on accepting [the] argument that zero is a limited time [to use the language of the Constitution's Copyright Clause],” saying: “No. Not on the First Amendment side. Not at all. No. No. No. No. . . . [T]here is no way the government can pass intermediate scrutiny here. This [law] was not required by Berne. The government does not even contend Section 514 was required by Berne, nor could it, because that would violate Congress's explicit findings [from] 1988. . . . There was [only] very vague testimony about the unsupported possibility that [international sanctions] could happen, and that's why the government falls back on this [purported] interest of avoiding a dispute [with other nations.] Here is the problem. If the government can get around First Amendment limits by signing a treaty, and then the flexibility to take away public speech rights is defined by some complaint proffered by some treaty partner, then the First Amendment is defined only by the perceptions, the complaints and frankly the imagination of foreign countries. That can't be the way it works.”