10th Circuit re-opens copyright restoration for non-US works

Lawrence Lessig blogs this rather complex, but potentially significant decision here

[begin excerpt; the blog post contains links to relevant legal material]

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 (“URAA”) 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.

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