Supreme Court Ponders On....

The ten-year lawsuit I have been a part of, now called "Golan Vs. Holder," was argued in the Supreme Court on Oct. 5. To recap briefly, in 1995 Congress passed a law that allowed foreign countries to restore copyrights to films that were in the public domain in the USA, films I had been selling from Metropolis to Grand Illusion to Seventh Seal.  The Constitution says that once works fall into the public domain they can not be removed from it.

Ten years later, the ultimate hearing.  I knew Oct. 5 was the date, but had heard nothing from Stanford Law School on or afterward, so I finally searched for news on the Internet. As I should have known, legal arguments take place at that level on one day and decisions are announced some time later. We are still waiting.  Here is an excellent summation of what took place that day:

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The United States Supreme Court today considered arguments in Golan v. Holder, one of the most important copyright cases in the country's history and a case that will decide whether millions of creative works, including early-to-mid 20th century foreign masterpieces from H.G. Wells, Fritz Lang, Frederico Fellini, and Igor Stravinsky, will be copyrighted or in the public domain.

The issue presented in the case is whether the U.S. government wrongfully took many foreign works out of the public domain and violated the free speech rights of the American public by joining an international treaty.

The named plaintiff in the case is an orchestral conductor named Lawrence Golan, who wished to create a derivative work based on compositions by Dmitri Shostakovich, but found himself out of luck after the U.S. led a new international treaty signed in Uruguay in 1994 that harmonized many intellectual property laws around the globe.

The moves established copyright protection in the U.S. for some foreign authors who either never enjoyed it or whose initial copyright term had elapsed without renewal, which upset many educators, performers, publishers, film archivists, and some motion picture distributors, who joined with Golan in fighting the removal of important works from the public domain.

At the hearing today, Anthony Falzone of the Stanford Center for Internet and Society represented the petitioners and argued that Section 514 of the Uruguay Round Agreements Act (URAA) violated the U.S. Constitution, particularly the Copyright Clause ("to promote the Progress of Science and useful Arts...") and the First Amendment.

"The progress of science corresponds roughly to the creation and spread of knowledge and learning," said Falzone today. "A statute that does nothing, like this one, does nothing but take old works out of the public domain without any impact or prospective incentives, cannot stimulate the creation of anything...All it can do is restrict the spread of things."

Advocates for the other side argue that Congress was perfectly within its right to ratify the treaty, and many interested parties including large Hollywood companies and trade associations believe that the URAA went a long way to bolstering copyright protection around the world. 

At the hearing today, representing the side of the respondents, U.S. Solicitor General Donald Verilli told the justices,  "The policy-making branches of our government decided we needed to be, and was in the national interest, to be part of the international copyright system."

Verilli argued the treaty was merely intended to "rectify a problem" for foreign authors -- not establish perpetual copyright terms or make new protection on terms that had run its course.

But Verilli encountered deep skepticism from several justices who questioned whether extending copyright protection backwards offered real incentives for artists to create.

Talking about foreign authors who come to the United States to market works already created, Justice Scalia mused, "It makes more money for the guy who wrote it, but doesn't incentivize anybody."

Justice Roberts also admitted that he found the petitioner's arguments to be appealing on an "intuitive level."

"One day I can perform Shostakovich," he said. "Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?"

Verilli answered that it wasn't so simple, and that Congress had made changes to the copyright system before that may have interfered with speech once freely enjoyed.

For his part, Falzone also was peppered with tough questions, particularly from Justice Ginsburg, who seemed to accept the viewpoint that the treaty was meant to rectify a problem. The justice wondered whether the copyright term ever really began for foreign authors and questioned why they shouldn't receive the same protections that American authors get.

Justice Ginsburg asked: "We are talking about Shostakovich, Stravinski, and I say: Well, what's wrong with giving them the same time that Aaron Copland got?"

During the hearing, Falzone warned that if the Supreme Court upholds the treaty, it could potentially open the door to more actions from Congress.

All Congress would need to do to move Alexis de Tocquieville's 19th century books out of the public domain, he argued as an example, would be to extend existing copyright terms 100 years and apply it retroactively. 

Falzone warned about the consequences of such an event. "Then you never know if you've reached the limit or not," he told the justices.