Last week was a pretty good one for copyright law, what with a massive protest against disastrous legislation, that, hooray, got Congress to pay attention and put the legislation on hold.  Unfortunately, last week we also saw the results of another bad law that Congress did manage to push through, back before the Internet existed in anything like its present form.  Ignoring the pleas of musicians, composers, libraries, archives and public interest groups, the Supreme Court declared that Congress did not violate the Constitution when it yanked millions of foreign works out of the public domain.  Striking a sad blow against the traditional copyright balance between private and public interests, the Court declared: 

Neither the Copyright and Patent Clause nor the first Amendment . . . makes the public domain, in any and all cases, a territory that works may never exit.

At issue was Section 514 of the Uruguay Round Agreements Act, which took millions of works by foreign authors that were previously in the public domain and put them back under copyright protection. Works affected by this law include Sergei Prokofiev's Peter and the Wolf, music by Stravinski, paintings by Picasso and drawings by M.C. Escher, and writings by George Orwell and J.R.R. Tolkien -- material that has been used and performed countless times. Now that the works are back under copyright protection, use of the works may require paying hefty license fees.  The lead petitioner, Lawrence Golan, is a music professor and conductor who challenged the law because it made performance of many works prohibitively expensive for many small orchestras. By taking the works out of the public domain, Congress had impinged on his vested free speech interest in using those works. On behalf of the American Library Association and other public interest groups, EFF filed an amicus brief in support, explaining that an unstable public domain creates dangerous uncertainty about copyright policy, posing a significant threat to libraries, digital repositories, and others that promote access to knowledge.

The Supreme Court has historically been friendly to copyright maximalists: In recent years it has signed off on Congress’s seemingly endless extensions of the copyright term, overturned a Ninth Circuit decision finding that several file-sharing services were legal, and refused to hear an appeal of a disastrous Ninth Circuit decision on the first sale doctrine that directly contradicted the holding in other appellate courts.  But there was reason to hope it would draw a line in this case.  Several years ago, in oral arguments over whether Congress could drag lengthen the term of copyright, the lawyers for both sides, and the Justices, all seemed to agree that once the copyright term on a work DID expire and it entered the public domain, it would stay there.  Indeed, the Tenth Circuit Court of Appeals referred to this as a “bedrock principle” of copyright law, and concluded that the URAA had altered the traditional contours of copyright law.  Therefore, the appellate court declared, URAA had to pass First Amendment scrutiny.


The Supreme Court disagreed, stating that the “traditional contours” of copyright comprise just two limits: fair use, and the idea/expression distinction.  As long as Congress doesn’t mess with those, the First Amendment is satisfied. 

What is worse, as Justice Breyer explained in his dissenting opinion, the majority gave short shrift to what should have been a central issue: whether granting new rewards to foreign authors (or, often, their heirs) served the purpose of copyright, i.e., to encourage the progress of science and the useful arts. 

The statute before us . . . does not encourage anyone to produce a single new work.  By definition, it bestows monetary rewards only on owners of old works – works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of  . . . foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books – books that (in the absence of statute) would assume their rightful places in computer accessible databases, spreading knowledge throughout the world.

Justice Breyer got it.  Too bad the majority didn’t.  Word to the Internet: this is why we must never again let copyright maximalists ram through legislation under cover of night.  Word to Congress: we’re staying vigilant, and if you won’t protect the public domain, we will.