Golan v Holder: How Many Supreme Court Justices Does It Take To Remove Crayons From The Free Speech Crayon Box?

If you think this case is about Shostakovich or Stravinsky, think again. At issue in Golan v Holder No. 10-545, 131 S.Ct. 1600, writ of certiorari granted March 7, 2011, is whether Congress can remove works from the public domain.

The public domain is the "marketplace of ideas" and wellspring of expression. Once in the public domain, works are as freely useable as though they were facts, and "[f]acts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs." Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011). The public domain contains source material for First Amendment speech and expression that is responsible for advances in art, literature, medicine, science and virtually all forms of human endeavors. At issue in Golan v Holder is whether Congress can take away what the Constitution has granted, and the question is now in the hands of an ideologically divided Supreme Court.

Copyright is a constitutionally protected right that allows an innovator to protect the expression of a work for a limited time. Congress sets the rules by which an innovator can either take steps to protect a work or permit a work to be freely used in the public domain. But the Constitution does not grant Congress the power to remove content from the public domain, and battle lines were drawn when Congress tinkered with the public domain and granted copyright protection to works that had been freely used in the U.S. for generations.

In 1988, the U.S. became a participant in the Berne Convention. Congress did not, however, codify Article 18 of the Berne Convention which required signatory nations to give copyright protection to the works of other Berne members that had not "fallen into the public domain in the country of origin." On December 8, 1994, Congress codified section 514 of the Uruguay Round Agreement Act (the "URAA"), adopting international standards under the Berne Convention for reciprocal copyright protection (17 U.S.C. 104A and 109(a)), and extending US copyright protection to works that had been in the public domain in the US.

In 2001, in Golan v Ashcroft, conductors, educators, artists, producers and publishers brought suit in the District Court in Colorado seeking a judgment declaring unconstitutional the laws that codified Section 514 of the Uruguay Round Agreements. The case, now Golan v. Holder, was argued before the Supreme Court on October 5, 2011. By that...