Notre Dame Journal of Law, Ethics & Public Policy

Volume 28 | Issue 1 Article 12

May 2014 Golan v. Holder, the Copyright Clause, and the Changing Public Policy Underlying Copyright Law in the United States John J. Sierotnik

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Recommended Citation John J. Sierotnik, Golan v. Holder, the Copyright Clause, and the Changing Public Policy Underlying Copyright Law in the United States, 28 Notre Dame J.L. Ethics & Pub. Pol'y 411 (2014). Available at: http://scholarship.law.nd.edu/ndjlepp/vol28/iss1/12

This Note is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. 34929-nde_28-1 Sheet No. 211 Side A 05/07/2014 15:37:06 , . L. RK They 1 , 43 A Article 18 6 * As Justice Ruth Bader Gins- 5 was nearly twenty years in the ht from an American Perspective g Internet Blackouts Appear to have Desired Effect IEROTNIK Golan 411 One of the chief principles of the 4 3 J. S NTRODUCTION I OHN J , THE COPYRIGHT CLAUSE, AND CLAUSE, COPYRIGHT , THE International Copyri The copyright lobby ultimately lost the battle over The copyright lobby 2 , 132 S. Ct. at 879. , Jan. 19, 2012, at A11. Id. Golan COPYRIGHT LAW IN THE UNITED STATES THE UNITED LAW IN COPYRIGHT OST The controversy surrounding On January 18, 2012, many of the most popular sites on the many of the most popular On January 18, 2012, . P 5. Berne Convention for the Protection of Literary and Artistic Works art. 18, Sept. 6. * B.A., Catholic University, 2005. J.D. Candidate, Notre Dame Law School, 2014; I 1. Haley Tsukayma & Sarah Halzack, 2. 3. Golan v. Holder, 132 S. Ct. 873 (2012). 4. Marshall Leaffer, THE CHANGING PUBLIC POLICY UNDERLYING POLICY PUBLIC CHANGING THE . 373, 379 (1990) (The U.S. was the last major western country to join the . 373, 379 (1990) (The U.S. was the last ASH EV GOLAN V. HOLDER V. GOLAN R making.1, 1989, when the United States It traces its origin to March agreement for the pro- joined the Berne Convention, an international tection of intellectual property. W Convention). 9, 1886, 828 U.N.T.S. 251 (Article 18 grants protections to works that “have not yet fallen into the public domain in the country of origin” but excludes works that “through the expiry of the term of protection” have “fallen into the public domain of the country where protection is claimed.”). would like to thank Colleen Walter for her encouragement throughout the composition would like to thank Colleen Walter for her encouragement throughout my educational career. process and my parents for their love and support \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 1 2-MAY-14 13:51 Internet, including Google, Wikipedia, and Craigslist, blacked out their Google, Wikipedia, and Craigslist, Internet, including (SOPA). over the Stop Online Piracy Act home pages in protest SOPA, but the very same morning of the protest, it scored a major vic- same morning of the protest, it scored SOPA, but the very Court.tory in the Supreme decisions on In one of the most significant that Congress ever handed down, the Court ruled copyright law it has the public domain and enable has the power to remove works from what had previously been availa- rights holders to commercially exploit ble to the public at no charge. Convention is reciprocity for copyrights. burg stated, Congress “punted” on a key issue of the Convention, Arti- burg stated, Congress “punted” on implementing the treaty in cle 18, when it passed the initial legislation Act (BCIA). 1988, the Berne Convention Implementation of the Convention extends its protections to all foreign works that have of the Convention extends its protections to the expiry of a term of copy- not fallen into the public domain due argued that SOPA, a law strongly supported by the copyright lobby, a law strongly supported by the argued that SOPA, the government a burden on the Internet and gave imposed too high in the fight against piracy.too many powers was highly The protest soon lost con- public awareness of the bill, which successful in raising gressional support. 34929-nde_28-1 Sheet No. 211 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 211 34929-nde_28-1 34929-nde_28-1 Sheet No. 211 Side B 05/07/2014 15:37:06 16 11 Cop- . note 5, [Vol. 28 supra Peter and the Wolf (May 2, 2002), http://www. Brian Lee Pelanda, Note, ., Sept. 21, 2004, at 4. . 547 (2010). EV USIC EV . R M cited in US Following the Uruguay Round Following L. R B ETHICS & PUBLIC POLICY 8 This dramatic increase in costs This dramatic increase 15 AILY ESTWORD 13 D HITTIER LAW, W hts; Suit over Dolls Turns on Whether Work Once In hts; Suit over Dolls Turns on Whether Work Once IAMI g . (Feb 27, 2013, 12:54 PM), http://www.mellon.org/ Copyrighted works, however, may require Copyrighted works, ENVER , 31 W ,M The Orchestra Forum: A Discussion of Symphony Orchestras 12 , D for Ri OUND Because of the substantial financial burden, Because of the substantial financial g . F 14 Trollin ELLON Bitter Suite Because there were many works by Berne signatory by Berne works were many there Because note 12 note 12. 7 As a result of the URAA taking effect, copyright pro- As a result of the 10 W. M supra , supra , 132 S. Ct at 877–78. NOTRE DAME JOURNAL OF NDREW Id. Id. This Act restores copyrights to a broad class of works that for a copyrights to a broad class of works This Act restores A Golan 9 In the fall of 2001, a broad collation of musicians and distributors In the fall of 2001, a broad collation The passage of the URAA particularly affected symphony orches- URAA particularly affected symphony The passage of the 12. Marty Jones, 13. Jones 14. Catherine Wichterman, 9. 103–465, Uruguay Round Agreements Act, Pub. L. No. § 514, 108 Stat. 4809, 10. 11. Tresa Baldas, 15. Jones, 16. 8. 7. and Artistic Works, Berne Convention for the Protection of Literary ht’s “Traditional Contours” and “Bedrock Principles”: Golan’s Potential to Secure First Amend- ht’s “Traditional Contours” and “Bedrock Principles”: g westword.com/2002-05-02/music/bitter-suite/full/, yri ment Protection over the Public Domain in the US, Public Domain Later Can Be Protected 4976–81 (1994). news_publications/annual-reports-essays/presidents-essays/the-orchestra-forum-the- orchestra-forum-a-discussion-of-symphony-orchestras-in-the-us. at art. 18. The suit would take over a decade to resolve as it worked its way up and The suit would take over a decade to in oral arguments in the down the federal court system, culminating 412 protection. right \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 2 2-MAY-14 13:51 of classical music led by conductor Lawrence Golan filed suit in the of classical music led by conductor grant of copyrights to works in the District of Colorado, claiming the public domain afforded by §the URAA was unconstitutional. 514 of tras because they are one of the greatest utilizers of the public domain. one of the greatest utilizers of the tras because they are can obtain sheet to copyright protection, they For works not subject freely without dollars and perform the pieces music for a mere hundred fees. any need for licensing number of reasons were never subject to copyright protection in the were never subject to copyright number of reasons United States. nations that were never subject to copyright protection in the United in protection to copyright subject never that were nations their country from for works protection lack of copyright due to a States the then to comply with work, or a failure the medium of the of origin, of U.S. implementation copyright law, the under existing formalities incomplete. Convention was the Berne the never-ending to things as diverse as troll dolls, tection was restored M. C. Escher, and Prokofiev’s staircases drawn by many small, struggling orchestras stopped programming these works, many small, struggling orchestras stopped opportunity to hear them live until depriving many communities of the they reverted to the public domain. fees of over ten thousand dollars. fees of over ten presented a significant obstacle to orchestras.presented a significant At the time Congress of orchestras had a total budget passed the URAA, eighty-seven percent of less than $750,000. of trade agreements in 1994, Congress passed the Uruguay Round the Uruguay Congress passed agreements in 1994, of trade of these the issue which finally addressed Act (URAA), Agreements works. 34929-nde_28-1 Sheet No. 211 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 211 34929-nde_28-1 34929-nde_28-1 Sheet No. 212 Side A 05/07/2014 15:37:06 , , 413 RODUC- See also P ISTORY OF UFFINGTON H The com- , H Finally, on Finally, 24 18 . XFORD Golan v. Holder O AW NTELLECTUAL Eldred v. Ashcroft Eldred HE I L Golan , T in Golan v. Holder, Public Domain ORGAN g ROPERTY IN M OPYRIGHT P In the interim, the Supreme interim, In the C Over time, the Stationers’ Com- 17 AW OF ENNETH 23 L , THE COPYRIGHT CLAUSE COPYRIGHT , THE MERICAN . (Jan. 23, 2012), https://www.eff.org/deeplinks/ A The first restrictions on printing grew out The first restrictions on printing grew OUND 21 Public by Sufferance Alone: The Worst of 2012 F Supreme Court Gets it Wron REATISE IN THE RIGINS OF note 21, at 302–03. , A T note 22, at 55–56 n.1 (noting that a 1585 decree required printers RONTIER F supra RONE I. O supra , Following Mary’s death, her successor Elizabeth I re- Following Mary’s death, her successor D , 132 S. Ct. at 878. 22 This decision was widely criticized from rights groups, such as from rights was widely criticized This decision RONE ATON TIONS LECTRONIC Golan E 19 720 (2001). The history of copyright in the English-speaking world predates The history of copyright in the English-speaking The decision reached by the Supreme Court in The decision reached 55–56 (1879). 20 (Jan. 10, 2013 8:51 AM), http://www.huffingtonpost.com/james-boyle/public-by- 20. Corynne McSherry, 21. Jamestown was founded in 1607. K 22. E 23. Morgan, 24. D 17. Golan v. Holder, 132 S. Ct. 873 (2012). 18. the Copyright Term Extension Eldred v. Ashcroft, 537 U.S. 186 (2003) (holding 19. RITAIN OST 2012/01/supreme-court-gets-it-wrong-golan-v-holder-public-domain-mourns. James Boyle & Jennifer Jenkins, to register with the Stationers’ Company or face up to a year imprisonment). Mourns, while appearing to be a marked departure from statutory law and case be a marked departure from statutory while appearing to the most recent consistent with precedent and law, is surprisingly trends. copyright Note explores the history of our current Part I of this to the Sony Bono in the English Reformation regime from its origins of 1994. Act of 1998 and the URAA Copyright Term Extension Part II arguments that §will explain the musicians’ URAA is uncon- 514 of the them. the Supreme Court ultimately rejected stitutional and why Part policy and decision fits in against the changing III looks at how this law. United States copyright historical norms underlying Part IV con- domain. impacts the future of the public siders how this decision P sufferance-alon_b_2443850.html. B Act of 1988 did not violate the constitutional requirement that copyrights endure for Act of 1988 did not violate the constitutional Extension Act did not violate plaintiff’s First limited times and that the Copyright Term Amendment rights). 2014] 2011. 5, on October Court Supreme GOLAN V. HOLDER \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 3 2-MAY-14 13:51 the Electronic Frontier Foundation (EFF) and various legal commenta- (EFF) and Frontier Foundation the Electronic tors. would become the United States by the first English settlement in what nearly one hundred years. established the Church of England. of the turmoil of the English Reformation. Henry VIII’s Catholic the Stationers’ Company, a guild daughter, Queen Mary I, established propagation of the Protestant Ref- of printers organized to “prevent the ormation.” Court decided another significant copyright case, case, copyright significant another decided Court in holding on its influence had a substantial which and grew in power. pany gained a monopoly on printing January 18, 2012, as the Internet was protesting what it viewed as a dra- what it viewed was protesting 2012, as the Internet January 18, crushing delivered a the Supreme Court copyright law, conian new of § upheld the constitutionality musicians and blow to the of the 514 URAA. particular work with the guild and pany allowed members to register a 34929-nde_28-1 Sheet No. 212 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 212 34929-nde_28-1 34929-nde_28-1 Sheet No. 212 Side B 05/07/2014 15:37:06 . EV This the Past [Vol. 28 . L. R g 36 OUS ettin g 28 , 47 H Parliament codi- Parliament Those who contra- Those 26 Following the expi- ht Law: For g 25 32 . 365, 398 (2004). It is important to note that EV 35 ress and Copyri ETHICS & PUBLIC POLICY g L. R LAW, LARA C ANTA The Act was renewed several times, but Parlia- was renewed several The Act In response, Parliament passed the Statute of In response, Parliament , 44 S ue: The Statute of Anne: Yesterday and Today 27 29 The Problem with Con g Authors enjoyed the exclusive right to designate a Authors enjoyed Additionally, the first copyright statute enacted Additionally, the first copyright note 22, at 55–56. Prolo Unlike during the Stationers’ Company’s earlier Unlike during . art. I, § 8, cl. 8. I will argue, however that there are also some key 31 34 30 supra at note 92. , ONST 33 infra at 783; Statute of Anne, 8 Anne, c. 19 (1710) at § 1 (“And that the author and authors of any map, chart, book . . . . being the Public Interest . at 57–58. NOTRE DAME JOURNAL OF RONE g Id. Id. Id. Id. Id Id. norin The influence of the Statute of Anne on early American copyright Statute of Anne on early American The influence of the Following a brief period where anyone could freely print anything, anyone could a brief period where Following g 32. that the Author of any Book or Statute of Anne, 8 Anne, c. 19 (1710) (“[A]nd 33. 34. U.S. C 30. 31. 26. D 35. Copyright Act of 1790, ch. 15, 1 Stat. 124. 36. 27. 28. 29. Craig Joyce, 25. Craig W. Dallon, Books already Composed and not Printed and Published, or that shall hereafter be Com- Books already Composed and not Printed and the sole Liberty of Printing and Reprinting posed, and his Assignee, or Assigns, shall have years”). such Book and Books for the Term of fourteen 779, 782 (2010). a citizen or citizens of these United States, or resident therein . . . shall have the sole right and liberty of printing . . . .”). and I differences, 414 it perpetually. to publish rights exclusive received \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 4 2-MAY-14 13:51 law is very apparent. Copyright Clause of the Constitu- The text of the Science and useful Arts, by securing tion, “[t]o promote the Progress of the exclusive Right to their for limited Times to Authors and Inventors shares many similarities with the respective Writings and Discoveries,” English statute. the members of the Stationers’ Company lobbied Parliament to pass a Parliament Company lobbied of the Stationers’ the members new copyright statute. under the Constitution, the Copyright Act of 1790, protected works for under the Constitution, the Copyright fourteen years with an option to the same term as the Statute of Anne: renew for an additional fourteen years. monopoly on all printing, this Statute vested the rights to works in the this Statute vested the rights monopoly on all printing, authors directly. printer or printers to publish their work for a term of fourteen years to publish their work for a term printer or printers for the same term of years. with another renewal ment eventually allowed it to permanently lapse in 1694. to permanently lapse allowed it ment eventually Anne in 1710. this initial copyright Act only protected works created by citizens or per- this initial copyright Act only protected no such protection. manent residents; foreign works received vened the ordinance were subject to arrest and destruction of the of destruction arrest and to were subject the ordinance vened Company. of the members by the books offending books were freely printable by anyone.ration of the term, The stated of Learn- was the very utilitarian “Encouragement purpose of this Act Books in the “by Vesting the Copies of Printed ing,” accomplished Times therein of such Copies, during the Authors or Purchasers mentioned.” fied many of the powers granted to the Stationer’s Company with the Company to the Stationer’s of the powers granted fied many Act of 1662. Licensing Act, like the Statute of Anne, also mandated certain formalities, namely Act, like the Statute of Anne, also mandated 34929-nde_28-1 Sheet No. 212 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 212 34929-nde_28-1 34929-nde_28-1 Sheet No. 213 Side A 05/07/2014 15:37:06 , 41 415 , 3 J.L. Addition- 44 45 6 Berne Convention 88 In 1976, Congress In 1976, 39 While the Swiss govern- 43 In 1998, Congress further In 1998, Congress 40 Id. , THE COPYRIGHT CLAUSE COPYRIGHT , THE 42 The exclusion of foreign works and required works of foreign exclusion The 37 Better Late than Never: Implementation of the 1 The Berne Convention: Its History and Its Key Role in the Future note 43, at 16. supra L.J. 171, 174 (1989). L ’ NT at § 3. I Id. in 1909, they extended it to fifty-six years. they extended it in 1909, . 1, 12 (1988). 38 Over the next century, an additional sixty-seven countries would Over the next century, an additional In addition to its English heritage, American copyright law has in English heritage, American copyright In addition to its Throughout the nineteenth and twentieth centuries, Congress and twentieth the nineteenth Throughout ORNELL 38. Copyright Act of 1831, ch. 16, 4 Stat. 436. Additionally, this Act required notice 45. Burger, 39. Copyright Act of 1909, ch. 320, 35 Stat. 1075. 40. 90 Stat. 2541. Copyright Act of 1976, Pub. L. No. 94-553, 41. Pub. L. No. 105-298, 112 Stat. 2827 Sony Bono Copyright Term Extension Act, 42.565, 26 Stat. 1106. This resulted in International Copyright Act of 1891, Ch. 43. Peter Burger, 44. Orrin G. Hatch, 37. ECH & T of the copyright to be printed on the work. (1998). and Switzerland in 1891, Proclamation reciprocity with Belgium, Great Britain, France, and Italy in 1892, Proclamation No. 24, 27 No. 3, 27 Stat. 981 (July 1, 1891); Germany Portugal in 1893, Proclamation No. 1, 28 Stat. 1021, 1043 (April 15, 1892); Denmark and 28 Stat. 1222 (July 20, 1893), Spain in 1895, Stat. 1219 (May 8, 1893); Proclamation No. 4, and Mexico and Chile in 1896, Procla- Proclamation No. 5, 29 Stat. 871 (July 10, 1895); mation No. 10, 29 Stat. 877 (Feb. 27,1896); Proclamation No. 13, 29 Stat. 880 (May 25, 1896). 22 C Alongside lengthening the term, the various acts also extended the the term, the various acts also Alongside lengthening of modern tech- to keep up with the developments reach of copyrights nology.Copyright Act to in 1891, Congress amended the Additionally, afforded citizens of foreign states whose countries grant protection to by the Presi- to American works, as determined adequate protections States. dent of the United 2014] filing. and registration GOLAN V. HOLDER \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 5 2-MAY-14 13:51 join the Berne Convention and the United States faced increasing inter- join the Berne Convention and the recent years come to be shaped by international concerns.recent years come In the late convened an international nineteenth century, the Swiss government Berne. conference to address copyrights in formalities for statutory copyright protection would later be a source of a source later be would protection copyright statutory for formalities unprotected. went as works tension times. acts several the copyright or completely overhauled amended copyright term. duration of the extended the Many revisions Initially, forty-two a maximum of the term to Congress extended in 1831, years; ment invited the United States to the conference, the Americans ulti- ment invited the United States to the resulting agreement, the Berne mately declined to adopt the with existing United States law Convention, because it was incompatible authors at the time. which did not protect works of foreign extended the copyright term to the life of the author plus seventy years term to the life of the author extended the copyright Act (CTEA). Bono Copyright Term Extension by passing the Sony abandoned a term of a fixed number of years and changed the term to of a fixed number of years and changed abandoned a term plus fifty years. the life of the author ally, the Berne Convention plainly stated that its focus was on protect- ally, the Berne Convention plainly utilitarian concerns. ing the rights of the authors and not 34929-nde_28-1 Sheet No. 213 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 213 34929-nde_28-1 34929-nde_28-1 Sheet No. 213 Side B 05/07/2014 15:37:06 52 51 [Vol. 28 This case 56 Due to disagree- Due 47 and ultimately joined 49 OLDER Second, it granted copyright ETHICS & PUBLIC POLICY 53 . H LAW, Lastly, the URAA restored copyrights if Lastly, the URAA restored copyrights OLAN V G 54 In particular, foreign countries would cite would countries foreign In particular, 46 II. The Road to the Supreme Court 50 310 F. Supp. 2d 1215, 1216–17 (D. Colo. 2004). , A. note 43, at 68. note 44, at 171–72. note 44, at 171, 178. supra supra supra at 178. at § 514. . NOTRE DAME JOURNAL OF Id Id. Id. Id. However, in response to the international pressure and to the international in response However, 55 48 Although, the United States officially joined the Berne Conven- States officially joined the Berne Although, the United In the fall of 2001, a group of musicians filed suit in the United In the fall of 2001, a group of musicians 54. 55. 56. Golan v. Ashcroft 48. Burger, 49.1988, Pub. L. No. 100-658, 102 Stat. Berne Convention Implementation Act of 50. Hatch, 51. Golan v. Holder, 132 S. Ct. 873, 877 (2012). 52. Uruguay Round Agreements Act, Pub. L. No. 103–465, 108 Stat. 4809 (1994). 53. 46. Hatch, 47. 2853. The Act passed to implement the agreement, the Uruguay Round implement the agreement, the The Act passed to copyright protec- had the effect of restoring Agreements Act (URAA), that had fallen copyright in their home country tion to works under three reasons. in the United States for one of into the public domain public domain protection if the work was in the First, the law restored States formalities such as provid- due to a failure to comply with United ing notice of the claimed copyrights. 416 to join. pressure national \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 6 2-MAY-14 13:51 following modifications to American copyright law that were more com- law that were more American copyright modifications to following States passed the of the Convention, the United patible with the terms Implementation Act of 1988 Berne Convention to fully adopt the to the law were necessary tion, additional changes implementing changes came about in the legislation Convention. The agreements. Uruguay round of international trade the results of the States District Court for the District of Colorado challenging the consti- States District Court for the District Agreement Acts (URAA) and tutionality of both the Uruguay Round Act (CTEA). the Sony Bono Copyright Term Extension the reason the work was in the public domain was that the United States the reason the work was in the public to works created in its country of did not afford copyright protection origin. the United States’ lack of membership in the Berne Convention as Berne Convention in the of membership lack States’ the United piracy. over negotiations during hypocritical being protection if the law, at the time a work was created, did not protect its protection if the law, at the time a work subject matter, but later did. ments with the underlying policy of the agreement and the incongruity policy of the agreement the underlying ments with copy- American with the then-existing of the Convention of the terms Conven- resist joining the continued to the United States right law, tion. the Berne Convention. as the district court stayed the would be placed on hold for two years 34929-nde_28-1 Sheet No. 213 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 213 34929-nde_28-1 34929-nde_28-1 Sheet No. 214 Side A 05/07/2014 15:37:06 67 68 to 417 66 , Writing 59 , which held The musicians’ Eldred 64 63 , the district court dis- 57 Finally, the musicians The Court noted that it is The Court noted 69 61 Graham v. John Deere Co. Eldred Perhaps most importantly, they Perhaps most importantly, 62 , THE COPYRIGHT CLAUSE COPYRIGHT , THE , the the considered whether Supreme Court 537 U.S. 186 (2003). The CTEA was also found to be a rational exer- The CTEA was also , 60 The CTEA was challenged on the grounds that it vio- on the grounds that was challenged The CTEA Citing a long history of term extensions for both copy- Citing a long history They relied on both the history of copyright legislation They relied on both the history of 58 , 310 F. Supp. 2d at 1219. 65 at 222. at 212. at 205–06. at 204. at 196. . at 1220. . . at 1218. . at 1217. Golan. Id Id Id Golan Id. Id. Id. Id. Id Id. Eldred v. Ashcroft Eldred v. Following the Court’s decision in Following the Court’s decision in In 68. 69. 64. Golan v. Ashcroft, 310 F. Supp. 2d 1215, 1218 (D. Colo. 2004). 65. 66. Graham v. John Deere Co., 383 U.S. 1 (1966). 67. 63. 61. 62. 60. 57. 58. Eldred v. Ashcroft 59. missed the musicians’ claim against the CTEA. missed the musicians’ claim against Their second argument was that § 514 of the URAA inhibited their Amendment because they lost the right to free speech under the First had their copyrights restored. ability to freely publish works that have the holding in They distinguished their claim from 2014] claim nearly identical on a Court ruled Supreme the while proceedings CTEA. of the constitutionality the challenging GOLAN V. HOLDER not necessary, by claiming that in that First Amendment scrutiny is the URAA upset “the tradi- removing works from the public domain, tional contours of copyright protection.” \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 7 2-MAY-14 13:51 CTEA unconstitutionally extended the length of the copyright term for of the copyright the length extended CTEA unconstitutionally existing works. and an earlier decision in a patent case, and an earlier decision in a patent lated both the Copyright Clause and the First Amendment. and the First the Copyright Clause lated both cise of legislative power because Congress desired to extend the U.S. power because Congress desired to cise of legislative nations. be on par with that of European copyright term to This disadvantage authors were not at a competitive insured that American European counterparts. compared to their held that conformity with those goals was to be considered in the con- with those goals was to be considered held that conformity intellectual property regime. text of the entire the role of Congress, not the Court, to determine how to best pursue not the Court, to determine how the role of Congress, Clause. the goals of the Copyright remaining three claims concerned the constitutionality of §remaining three claims concerned 514 of the to works previously in the URAA that restored copyright protection public domain.that Congress lacked the power to They first argued because doing so did not meet remove works from the public domain the Progress of Science and the constitutional mandate to “promote useful Arts.” for the majority, Justice Ginsburg upheld the constitutionality of the constitutionality upheld the Justice Ginsburg for the majority, the out- strongly influence would come to of which law, the reasoning come of term of she held that extending the copyright rights and patents, requirement that not violate the Copyright Clause’s existing works did the term be limited. support their claim that Congress lacked the necessary authority. support their claim that Congress 34929-nde_28-1 Sheet No. 214 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 214 34929-nde_28-1 34929-nde_28-1 Sheet No. 214 Side B 05/07/2014 15:37:06 [Vol. 28 However, 73 72 They supported They 70 On appeal by the govern- On appeal by the 75 ETHICS & PUBLIC POLICY The Tenth Circuit remanded the The Tenth Circuit LAW, 74 Dissatisfied with the verdict, the musicians Dissatisfied with the 76 where he stated that retroactive legislation that stated that retroactive where he 501 F.3d 1179, 1191–92 (10th Cir. 2007). The court noted , 609 F.3d 1076 (10th Cir. 2010) (holding that Congress , 71 611 F. Supp. 2d 1165, 1177 (D. Colo. 2009) (finding that the 611 F. Supp. 2d 1165, 1177 (D. Colo. 2009) , , . Id , 310 F. Supp. 2d at 1220. . NOTRE DAME JOURNAL OF Justice Ginsburg wrote the majority opinion and all the other Justice Ginsburg wrote the majority Id Golan The Public Domain is Not Inviolable—The Supreme Court Decision 77 In rejecting the musicians’ claim that §In rejecting the musicians’ claim that 514 of the URAA violated The district court initially granted a summary judgment motion for judgment motion a summary court initially granted The district On January 18, 2012 over a decade of litigation would end as the On January 18, 2012 over a decade 76. Golan v. Holder 77. Golan v. Holder, 132 S. Ct. 873 (2012). 73. 2005 WL 914754 (D. Colo. Sept. 4, Golan v. Gonzales, No. Civ.01-B-1854(BNB), 74. Golan v. Gonzales 75. Golan v. Holder 70. 71. (Kennedy, J., concurring). Eastern Enters. v. Apfel, 524 U.S. 498 (1998) Golan 72. B. that outside a few exceptional circumstances that occurred just following each of the two that outside a few exceptional circumstances affording copyright protection to works in World Wars, there is little history of Congress the public domain. 2007). U.S. went further than other nations that implemented the Berne Convention, and that the Act treated foreign authors more favorably than domestic authors). intended to protect the rights of domestic authors and rationally believed that restoring copyrights for foreign authors could induce their countries to do the same for domestic authors). v. Asoft. 2d 1215, 1217 trade agreementsing the results of hte ion. better protection for v. Asoft. 2d 1215, 1217 trade agreementsing 418 they because violated were rights Amendment their Fifth that claimed due process. without property of their deprived were \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 8 2-MAY-14 13:51 Justices joined her opinion except Justices Stephen Breyer and Samuel Justices joined her opinion except Justices Kagan who did not take part in Alito who dissented and Justice Elena the decision of the case. opinion addressed both the Copy- Ginsburg’s claim of the musicians. right Clause claim and the First Amendment relied heavily on the court’s ear- the Copyright Clause, Justice Ginsburg the government, rejecting each argument of the musicians. argument of rejecting each the government, upsets people’s expectations is a violation of due process. is a violation of expectations upsets people’s Supreme Court released a six to two decision in favor of the govern- Supreme Court released a six to two ment. successfully petitioned the Supreme Court for certiorari, and oral argu- successfully petitioned the Supreme ments were heard on October 5, 2011. case back to the district court, which this time found in favor of the district court, which this time found case back to the that while §musicians, holding content-neutral 514 of the URAA was a was necessary burden substantially more speech than restriction, it did government interest. to meet a legitimate ment, the Tenth Circuit rejected the district court’s determination that rejected the district court’s determination ment, the Tenth Circuit the § Amendment URAA violated the musicians’ First 514 of the not burden more were narrowly tailored and did because the provisions speech than was necessary. this claim by looking to a concurring opinion by Justice Kennedy in Kennedy by Justice opinion to a concurring looking claim by this v. Apfel Eastern Enters. on appeal, the Tenth Circuit reversed the decision on the First Amend- on the First reversed the decision the Tenth Circuit on appeal, First Amendment the musicians’ argument that ment claim, accepting contours” of cop- because one of the “traditional scrutiny was necessary and § works in the public domain stay there, yright law was that 514 of this principle. the URAA upsets 34929-nde_28-1 Sheet No. 214 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 214 34929-nde_28-1 34929-nde_28-1 Sheet No. 215 Side A 05/07/2014 15:37:06 82 419 She noted 85 With dissemina- The Court took Expanding on the Expanding 81 84 80 Despite the loss of free, established, for purposes for established, 86 Eldred at 878. Id. Under that definition, the restored that definition, Under , THE COPYRIGHT CLAUSE COPYRIGHT , THE 78 87 She noted that noted that She 83 , Justice Ginsburg argued that the Copyright Clause is , Justice Ginsburg Eldred. Id. Eldred at 892–93.The Court noted that the net effect of the URAA is to place at 892. at 890–91. at 894. at 889. at 888. . at 884. . at 885–87. Id. Id. Id. Id. Id. Id. Id Id Id. Additionally, the majority opinion also cites several statutes opinion also cites the majority Additionally, Unlike the Tenth Circuit, the Supreme Court rejected the idea Circuit, the Supreme Court rejected Unlike the Tenth 79 86. 87. 85. 84. 83. 82. 78. 79. authors would receive fewer years of The Court additionally noted that foreign 80. 81. foreign works on the same level as domestic works. In particular, it noted that works of Aaron Copland and Leonard Bernstein were always subject to copyright protection in the United States, but the works of their contemporary, Sergei Prokofiev, were not protected until the URAA. exclusivity than domestic authors because they receive no credit for the time in which exclusivity than domestic authors because they their works were not protected by copyright. Indeed, in the last section of the opinion, the Court noted that they are section of the opinion, the Court noted Indeed, in the last the law is within wisdom of the URAA, but rather that not ruling on the the power of Congress. 2014] in lier decision as “con- interpreted is to be “limited” that Clause, Copyright of the bounds.” certain within fine[d] GOLAN V. HOLDER \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 9 2-MAY-14 13:51 that § under the First warranted heightened scrutiny 514 of the URAA copyright protec- that the “traditional contours” of Amendment, noting facts, and preserving the fair use tion, only protecting expressions, not of works, are not affected by § of the URAA. 514 from the original Copyright Act of 1790 to late nineteenth century stat- nineteenth century Act of 1790 to late original Copyright from the argued Justice Ginsburg statutes that twentieth century utes to mid in the public domain. to works granted copyrights copyrights were sufficiently limited because they would eventually limited because were sufficiently copyrights end. unrestricted access to the affected works, the Court held that Congress unrestricted access to the affected works, rights because they still did not violate the musicians’ First Amendment fair use or obtaining a license have access to the works through either through the marketplace. not confined to simply incentivizing new creation, but rather extends to incentivizing new creation, but not confined to simply dissemination of information. efforts to encourage particular issue with the argument of the musicians and the portion of particular issue with the argument of public’s right to a work vests when the Tenth Circuit’s holding that the it enters the public domain.17 U.S.C § Citing 201(a), which governs Justice Ginsburg noted that under the initial ownership of copyrights, the author of a work. statutory law, rights vest initially with tion considered an appropriate goal of copyright laws, she further appropriate goal of copyright tion considered an strict adher- to consider that Congress believed argued that it is rational that end. Convention would result in achieving ence to the Berne holding in that rights do not vest in the public following the expiration of the cop- that rights do not vest in the public into the public domain” and no yright term; the work “simply lapse[s] one has any ownership rights to it anymore. 34929-nde_28-1 Sheet No. 215 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 215 34929-nde_28-1 34929-nde_28-1 Sheet No. 215 Side B 05/07/2014 15:37:06 and 95 [Vol. 28 RACTICE P hts g opinion was how opinion 49 IDEA 147, 154–55 89 97 Golan ISTORY AND Justice Ginsburg, on the Justice Ginsburg, H 90 NTO I ETHICS & PUBLIC POLICY ITS Neither text, unlike the Statute of F 96 LAW, As There’s Another Way: Pivot Point v. Charlene Products As There’s Another Way: Pivot Point v. Charlene ULING g R S ’ As Lon In particular, she cites the fact that until the Copy- In particular, she OURT 91 C Utilitarian, Yet Grounded in Natural Ri in Natural Grounded Yet Utilitarian, The utilitarian theory was supported by the majority The utilitarian theory . art. I, § 8, cl. 8. 88 Part I. A. ONST , 132 S. Ct. at 901–02 (Breyer, J. dissenting). at 899–900. at 888–89. OW THE Despite their strong influence on early American copyright Despite their strong influence on 92 . NOTRE DAME JOURNAL OF Id. See supra Id. Id. Id Golan 93 both the Copyright Clause and the Copyright Act of 1790 speak both the Copyright Clause and the Although both Justice Ginsburg and Justice Breyer base their opin- Although both Justice Ginsburg and Where the two opinions diverge is on what exactly qualifies as a diverge is on what exactly Where the two opinions of Anne, the Copyright A close textual comparison of the Statute One of the most interesting aspects of the most interesting One of the 94 91. 92. 93. The Statute of Anne, 8 Anne, c. 19 (1710). It should be noted, however, that 94. 95. U.S. C 90. 96. Copyright Act of 1790, ch. 15, 1 Stat. 124. 97. 89. 88. Thomas M. Byron, III. H the Statute did convey the same benefits to existing, but unpublished works as it did to works yet to be created and also mandated that copies of texts be deposited in various libraries in England and Scotland. (2009). as an Accidental Template for Creativity-Driven Useful Articles Analysis, as an Accidental Template for Creativity-Driven 420 \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 10 2-MAY-14 13:51 the Court addressed the various competing theoretical justifications for justifications competing theoretical addressed the various the Court law.copyright as their conclusion attempt to justify Both opinions theory. with utilitarian being consistent law theory of copyright This access to by receiving the public benefits it exists because posits that creative works. law, only to “promot[ing] the Progress of Science and the useful Arts” only to “promot[ing] the Progress of theory, Justice Ginsburg also ions on their understanding of utilitarian influenced by the competing makes several arguments that are highly valid utilitarian end. position that the Justice Breyer’s opinion takes the some possi- mandates new copyright laws to provide Copyright Clause creation of new work. ble incentive for the supports Justice Ginsburg’s posi- Clause, and the Copyright Act of 1790 tion. plainly states Parliament passed it The text of the Statute of Anne men to compose and write useful for “the encouragement of learned books.” of the Founding Fathers and is reflected in the text and the dissent’s and is reflected in the text of the Founding Fathers of the Copyright Clause. historical interpretation right Act of 1976, federal statutory copyright required publication of federal statutory copyright required right Act of 1976, the work. Anne, directly mentions encouraging the composition or creation of Anne, directly mentions encouraging new works. of 1790 extended copyright pro- Indeed, the Copyright Act upon filing copies with the fed- tection to existing works, conditioned preservation. eral government for recording and other hand, believes that history suggests encouraging dissemination is that history suggests encouraging other hand, believes the crea- law, even in the absence of promoting a valid end to copyright tion of new works. the “encouragement of learning.” 34929-nde_28-1 Sheet No. 215 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 215 34929-nde_28-1 34929-nde_28-1 Sheet No. 216 Side A 05/07/2014 15:37:06 & 421 EDIA ht Term g . M Indeed, ROP 103 . P 102 Specifically, her Specifically, NTELL 99 I ht: The Introduction of Natu- g ORDHAM , 14 F hts and Copyri g ht Term Extension and the Constitution: A Histor- 105 g ht Law g 100 , THE COPYRIGHT CLAUSE COPYRIGHT , THE . 651, 656 (2002) (noting that the renewal provi- Human Ri EV U.S.A. 19, 30–31 (2001). The Constitutionality of the Sonny Bono Copyri . 2222, at 14 (1909) (suggesting that the copyright at 31 n.59. this The United States would later adopt Y ’ O Id. OC . N While the Copyright Clause is unquestionably While the Copyright . L. R S EP IN 101 Patent and Copyri In rejecting the musicians’ claim that their First claim that their the musicians’ In rejecting One scholar, however, argues that utilitarian argu- One scholar, however, argues that note 98, at 505. 98 OPYRIGHT . 6187, at 6 (1907). The natural rights arguments included provid- , 70 U. C O 106 8 . N supra EP This law, in many ways, was highly influenced by both utili- This law, in many ways, was highly Patrick H. Haggerty, , 49 J. C . a copyright term of the Notably, at that time France had already adopted . See Id Id 104 At the turn of the twentieth century, during the debates surround- At the turn of the twentieth century, The influence of natural rights theory on copyrights in the Anglo- rights theory on copyrights The influence of natural forth dur- natural rights arguments were put Both utilitarian and 105. 106. S. R 101. Statute of Anne, 8 Anne, c. 19 (1710). 102. Afori, 103. Tyler T. Ochoa, 104. 98. Orit Fischman Afori, Note, 99. Golan v. Holder, 132 S. Ct. 873, 893 (2012). 100. . L.J. 497, 502–04 (2004). NT E Extension Act of 199 life of the author plus fifty years. term in 1976. § Copyright Act of 1976, ch. 3, 302(a), 90 Stat. 2541. ical Perspective term and granted their family the right sion of the 1831 Act granted authors a lengthened to renew in the event they died before renewal came up, but also noting that where the author or his decedents declined to renew, the public received access to the work after the initial term expired). ral Law Considerations into American Copyri ing for the author for old age and his children until they are able to support themselves. The utilitarian arguments encouraged the author to revise his works and only set the term as long as necessary. H.R. R 2014] law. for copyright justifications rights natural rights theory natural The inter- has a property man exist because should copyrights that suggests trump interest should that property labor and of his the fruit est in GOLAN V. HOLDER societal concerns. \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 11 2-MAY-14 13:51 ing what would become the Copyright Act of 1909, both natural rights ing what would become the Copyright to recommend expansion of the and utilitarian arguments were made copyright term. sphere is hardly new. the “Detri- The utilitarian Statute of Anne notes their works authors faced when others published ment” and “Ruin” without their consent. for the first Copyright Act of 1831, which provided ing the debate of the 1790. the initial Copyright Act of term extension following ments were controlling because the text of the final House Report as ments were controlling because the Amendment rights were violated by the restoration of copyrights to cer- of copyrights by the restoration rights were violated Amendment fairness Ginsburg used a domain, Justice in the public tain materials in foreign composers URAA simply treated noting that the argument, contemporaries. manner as their domestic the same tarian and natural rights concerns. utilitarian, for much of American history, natural rights concerns have of American history, natural rights utilitarian, for much law. the debate surrounding copyright also been part of opinion speaks of authors being “deprived of protection” and “spared” authors being “deprived of protection” opinion speaks of the rights enjoyed and makes comparisons between further deprivation authors. by foreign and domestic while utilitarian concerns were raised, one of the primary motivations while utilitarian concerns were raised, copyright term was to place Ameri- behind the law’s lengthening of the with their counterparts in can authors on a more equal footing Europe. 34929-nde_28-1 Sheet No. 216 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 216 34929-nde_28-1 34929-nde_28-1 Sheet No. 216 Side B 05/07/2014 15:37:06 110 [Vol. 28 Indeed, 113 . 94-473, at 116–18 (1976). O . N Despite this sentiment, Despite this language in this language Despite EP . 2222, at 1–2 (1909) (Message to O 111 107 N EP ETHICS & PUBLIC POLICY LAW, 109 112 Similarly, both in a preliminary report in Similarly, both in 108 note 25, at 434–35. note 103, at 41–42 (noting that Robert Kastenmeir found it . 7083, at 1 (1907); H.R. R note 25, at 438. . 94-1476, at 134–35 (1976); S. R note 25, at 436 (discussing statements made by Sen. John Little O O . 6187, at 8 (1907). O . N . N supra supra supra supra EP EP . N EP NOTRE DAME JOURNAL OF Twenty-two years later, when Congress again extended copyrights Twenty-two years later, when Congress The influence of the natural rights theory on American copyright the natural rights theory on American The influence of 112. H.R. R 111. Ochoa, 113. Dallon, 110. Dallon, 109. H.R. R 107. Dallon, 108. S. R McClellan, Chairman of the Senate Subcommittee on Patents, Trademarks, and Copy- rights that his “sole objective” was to “encourage creativity” and promote public interest). “impossible” to find a public benefit to an interim term extension.) Congress, December 1905 by President Roosevelt). terms should be long enough to provide for authors at old age when the author “needs it terms should be long enough to provide for the most.”). Indeed, one congressman campaigned against a series of interim term Indeed, one congressman campaigned was debated because he could not extensions passed while the 1976 Act find any public benefit in the extensions. 422 the of Chairman Currier, by Rep. Frank floor on the as statements well justifica- natural rights the plainly reject Patents, on Committee House states. in the United law for copyright tions \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 12 2-MAY-14 13:51 by passing the CTEA, natural rights arguments so predominated the by passing the CTEA, natural rights the constitutionally mandated util- discussion that one scholar classified afterthought.” itarian justification as merely “an apparent law is even more apparent with the debate surrounding the two most apparent with the debate surrounding law is even more the Copyright the Copyright Act of 1976 and recent term extensions, (CTEA) in 1998.Term Extension Act 1909 Act, in As with the earlier motive. Act, Congress again professed a utilitarian justifying the 1976 1907 and in their final report, the House included comments made by final report, the House included comments 1907 and in their urging a revision in an address to Congress in 1905 President Roosevelt classes copyright laws because certain unprotected of the then existing and “hardships” to receive copyright protection of works were “entitled” public interest content producers and serve no that unduly burden eliminated. function should be natural rights arguments again were plentiful.natural rights arguments again were Both houses justified the Act in part because of increases need for the increased term of the 1976 unfairness in depriving authors of in life expectancy, the perceived work, the increase in the com- available economic benefits from their of further benefiting authors by mercial life of works, and the possibility joining the Berne Convention. the report accompanying the final bill, just two years earlier a Senate two years earlier the final bill, just accompanying the report for copyrights natural rights justification invoking the report clearly definite authors a “more was passed to grant Statute of Anne argued the that the to their work and of their right for the infringement remedy” but to “grant” copyrights, Congress did not authorize U.S. Constitution them. rather to “secure” the House noted that the CTEA ensured that the United States (and its the House noted that the CTEA ensured lose out on potential export rev- authors and rights holders) would not authors on equal footing, and enue, placed European and American grandchildren could benefit eco- ensured that authors’ children and 34929-nde_28-1 Sheet No. 216 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 216 34929-nde_28-1 34929-nde_28-1 Sheet No. 217 Side A 05/07/2014 15:37:06 423 119 ] (statement 115 GATT opinion. Golan v. at 255–57 (statement However, it was . at 171–72 (statement Golan 117 See also id See also id. One law professor, testifying One law professor, Id. 118 , 132 S. Ct. at 892 n.33. , THE COPYRIGHT CLAUSE COPYRIGHT , THE , shows a similar influence., shows a One of the Golan Another justification for the law was that Another justification Similarly, the Senate considering a compa- Senate considering the Similarly, , 103d Cong. 81 (1994) [hereinafter Golan 116 94 Before the Subcommittee on Intellectual Property and Judicial 94 Before the Subcommittee on Intellectual Property 114 8 . 105-452, at 4 (1998). They did also mention a utilitarian argu- . 105-452, at 4 (1998). They did also mention note 116, at 145, 150–62 (Statement and prepared testimony of O . 104-315, at 3 (1996). The Senate also suggested that this term . 104-315, at 3 (1996). The Senate also suggested reement on Tariffs and Trade (GATT): Intellectual Property Provisions: Joint reement on Tariffs and Trade (GATT): Intellectual O . N g and H.R. 4 supra EP 8 . N , EP at 207–08. Justice Ginsburg cites several of Prof. Perlmutter’s arguments . at 207. . at 190–92 (statement of Prof. Shira Perlmutter). GATT Id. Id Id General A 120 132 S. Ct. 873, 888–89 (2012). s on S. 236 , g Considered historically, it is hardly surprising that Justice Ginsburg Considered historically, it is hardly surprising Given the prominence of natural rights arguments during the vari- during the rights arguments prominence of natural Given the 120. 118. 119. 115. S. R 117. 116. 114. H.R. R Christopher Schroeder, Office of Legal Counsel, Dept. of Justice). Justice Ginsberg noted this in her opinion in Golan. Holder that claim the URAA satisfies the utilitarian mandate in her ment suggesting that the lengthened term of the CTEA would encourage further ment suggesting that the lengthened term creation. Administration of House Committee on the Judiciary and Subcommittee on Patent and Trademarks Administration of House Committee on the Judiciary of the Senate Committee of the Judiciary . . . is . . . we will get more than we give of Sen. Deconcini) (“The conventional wisdom far more works in foreign countries than because U.S. authors will be able to retrieve States.”). foreign authors will retrieve here in the United of Ira Shapiro, Office of the U.S. Trade Representative). of Jack Valenti, President and CEO of the MPAA). Hearin extension would enhance the public domain through stimulating the creation of new extension would enhance the public domain terms with that extension (the life of the works, however, given the length of copyright if any living today will be able to fully reap author plus seventy years), it is likely that few the benefits of this “enhanced” public domain. Much of the concern about the constitutionality of this legislation was about the constitutionality of this Much of the concern mandate of the Copyright not over whether it satisfied the utilitarian legislation violated the Takings Clause, but rather whether the Clause. 2014] the work. from nomically GOLAN V. HOLDER from sen- for passing the law, echoed by everyone primary justifications groups, was branch officials to the heads of industry ators and executive from grant- holders stood to benefit economically that American rights ing retroactive copyrights. \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 13 2-MAY-14 13:51 uses both natural rights and utilitarian arguments to support her con- uses both natural rights and utilitarian clusion. utilitarian justifications for While commonly present alongside taken on an increased promi- much of American history, they have ous copyright law extensions of the last century, it is hardly surprising of the last century, law extensions ous copyright and certain foreign works copyrights for which restored that the URAA, at issue in was the statute rable bill two years earlier noted that authors “deserve[d] to benefit authors “deserve[d] that noted years earlier bill two rable addi- an of protection term the and extending works, from their fully” happen. ensure that would years would help tional twenty where foreign because it rectified an unfair situation it was good policy something that was theirs. authors were deprived before Congress, noted that this constitutional requirement was satis- noted that this constitutional requirement before Congress, international cop- the URAA would strengthen the fied because passing new works. indirectly provide incentives to create yright system and also recognized that the Constitution mandates that copyright law the Constitution mandates that also recognized that a utilitarian end. taken as a whole have 34929-nde_28-1 Sheet No. 217 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 217 34929-nde_28-1 34929-nde_28-1 Sheet No. 217 Side B 05/07/2014 15:37:06 128 LARKE [Vol. 28 C § 27 (1690). She argues DWARD E 126 OVERNMENT G OCKE AND L The fact that the public The fact that the OHN 122 J REATISE ON T ETHICS & PUBLIC POLICY Indeed, the Tenth Circuit in one Indeed, the Tenth However, examining both the his- ECOND 121 LAW, , S 127 OCKE ORRESPONDENCE OF L note 25, at 400–01). To Locke, a laborer’s right to the But Not Unheard Of But Not Unheard C OHN HE supra , T Works From the Public Domain—Unprecedented, Works From g AND . art. I, § 8. R Dallon, 124 ONST , 132 S. Ct. at 908–09 (Breyer, J., dissenting). , 132 S. Ct. at 909 (Breyer, J., dissenting). at 908–09 J., dissenting). (Breyer, at 887. at 885–87. Removin the removal of works from the public domain is not com- the removal of works from the public cited in ENJAMIN Even ardent supporters of personal property rights, such as Even ardent supporters of personal NOTRE DAME JOURNAL OF Id. Id. Id. Golan Golan 125 B. 123 Although there was much public outcry about the effects of the the effects of public outcry about there was much Although As Justice Ginsburg’s opinion claims and Justice Breyer grudgingly As Justice Ginsburg’s opinion claims 128. 126. 127. 125. 122. Golan v. Gonzales, 501 F.3d. 1179, 1187–88 2007). (10th Cir. 123. U.S. C 124. B 121. fruits of his labor finds justification not in the laws of man, but in the law of God.fruits of his labor finds justification not in the He believed that through using one’s labor to transform something from the state of nature, we become forever joined with the target of our labor and have near unlimited rights over it unless others are in need. J 177 (1975) ( URAA, what is groundbreaking about the law is not the idea of remov- is not the idea of about the law is groundbreaking URAA, what that Congress public domain, but rather the fact ing works from the deemed doing so such a large scale, and the Court actually did so on constitutional. the URAA there Breyer’s dissent noted that until Justice the withdrawal string of legislation preventing was a “virtually unbroken public domain.” of works from the 424 intellectual and copyright most recent over our debates in the nence legislation.property of utilitarianism, her understanding Indeed, debates. such invites almost by history, supported though \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 14 2-MAY-14 13:51 pletely without precedent. cites the original Copyright Act Her opinion and statutes passed following the of 1790, several private letter laws, of this precedent. First and Second World Wars as proof accepts, John Locke, recognized that there had to be a limit to the protection of John Locke, recognized that there had hardly have any legitimate claim intellectual property because one can by someone who lived over a thou- to property rights in a work written sand years ago. torical context and the scope of prior copyright restorations demon- torical context and the scope of prior how exceptional the URAA is. strates, as Justice Breyer argues, just of the intermediary appeals of the case held that it is a “bedrock princi- appeals of the case held that it is of the intermediary there” and that works in the public domain remain ple of copyright law that “§ of copyright URAA] alters the traditional contours 514 [of the from this principle.” protection by deviating domain exists at all is not a matter of legislative grace, but rather is all is not a matter of legislative grace, domain exists at constitutionally mandated.prescribed in the Although not expressly because by restricting the document, its existence can be inferred to “limited Times,” the Constitu- monopoly granted to content creators the public will have free access to tion ensures that eventually one day works. that the United States’ joining of the Berne Convention is an excep- that the United States’ joining of the other occasions where works were tional event that is on par with these taken out of the public domain. 34929-nde_28-1 Sheet No. 217 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 217 34929-nde_28-1 34929-nde_28-1 Sheet No. 218 Side A 05/07/2014 15:37:06 N 425 130 137 . E EV . L.J. 1119, . L. R NT AND , 132 S. Ct. at 887 & E and 1976, Second, the Act 64 V EDIA 136 132 Golan ht Term Extension Act of g 133 . M Gains. ROP g 1909, . P 135 NTELL I Further, they merely allowed Further, they merely 131 ORDHAM , THE COPYRIGHT CLAUSE COPYRIGHT , THE Forever on the Installment Plan? An Examination of the Forever on the Installment Plan? An Examination , 12 F ht Clause and Whether the Copyri g Restoration: Small Burden, Bi Justice Ginsberg also noted that this was one of the arguments of the musi- Justice Ginsberg also noted that this was one ch. 11, 41 Stat. 368 (1919) (“When the foreign State . . . grants . . . to ch. 11, 41 Stat. 368 (1919) (“When the foreign Prior to this, copyright was a state matter which required which state matter was a copyright to this, Prior Last, while joining the Berne Convention may have been a Last, while joining the Berne Convention Id. See 129 134 Much weight should be given to Breyer’s argument that among Much weight should be given to Breyer’s The context and scope of the URAA could hardly be any more scope of the URAA could hardly The context and The nation’s first federal copyright statute, the Copyright Act of Copyright the statute, copyright first federal nation’s The 165, 170 (2011) (noting that the act affects works from certain countries produced 165, 170 (2011) (noting that the act affects Squares with the Founders’ Intent 133. 17 U.S.C. §134. 104A(h)(6)(C) (2006). Dale Nelson, Golan 132. 131. 129. Act during its second session on The First United States Congress passed the 130. Kevin D. Galbraith, Note, 135. Copyright Act of 1831, ch. 16, 4 Stat. 436, 439. (“Provided, That this section 136. Copyright Act of 1909, ch. 320, 35 Stat. 1075, 1077. (“That no copyright shall 137. Copyright Act of 1976, Pub. L. 94–553, § 90 Stat. 2541, 2573 (“[B]ut not 303, 8 ANC n.24. cians, but rejected it as she believed that the World Wars were on par with creating the cians, but rejected it as she believed that the Berne Convention. nation’s first copyright system and joining the citizens of the United States the benefit of copyright on substantially the same basis as to citizens of the United States the benefit of copyright (“who are nationals of countries which its own citizens”); ch. 421, 55 Stat. 732 (1941) to authors, copyright owners, or pro- accord substantially equal treatment in this respect prietors who are citizens of the United States”). 1136–37 (2002) (Delaware did not enact copyright legislation.). Constitutional History of the Copyri B May 31, 1790. Copyright Act of 1790, ch. 15, 1 Stat. 142. May 31, 1790. Copyright Act of 1790, ch. 15, on the subject matter). after 1923 but before 1955, 1964, or 1972 depending shall not extend to any copyright heretofore secured, the term of which has already expired.”). subsist in the original text of any work which is in the public domain.”). theretofore in the public domain . . . .”). 2014] GOLAN V. HOLDER elements of sovereignty the States ceded the Constitution, In ratifying federal government.to the new was for- existence Their fundamental ever changed. of state the patchwork laws that harmonized New federal expected.laws were only the World Wars passed following The statutes interests were of countries where U.S. copyright applied to nationals reciprocal basis. protected on a 199 \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 15 2-MAY-14 13:51 obtaining separate copyrights in each of the states that recognized it. states that recognized in each of the separate copyrights obtaining restorations. Copyright Act of 1790 or the wartime different than the to works cre- restorations, the URAA applies First, unlike the wartime time of a work’s signatory country, even if at the ated in any Berne or any expec- no reciprocal copyright arrangements creation there were protection in the United States. tation of copyright and rights holders, it is hardly the seminal event for copyright scholars the adoption of the U.S. wholesale revolution that accompanied Constitution. 1831, other acts, the Copyright Acts of 1790 was passed a mere one year following the ratification of the Consti- the ratification following one year a mere was passed 1790 tution. authors the opportunity to comply with the required American formali- to comply with the required authors the opportunity to do so because of the war. ties if they were unable in some cases impacts works created over eighty years ago and applies works created over eighty years in some cases impacts just a few short over several decades, rather than to works created years. 34929-nde_28-1 Sheet No. 218 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 218 34929-nde_28-1 34929-nde_28-1 Sheet No. 218 Side B 05/07/2014 15:37:06 , ht g [Vol. 28 Indeed, in a The Public Domain 147 L.J. 1065, 1072 (1953). ALE Some felt that this demon- Some felt 62 Y Indeed, while Congress was Congress while Indeed, . 499, 548 (1967). 139 Law, Despite the fact that the Con- Despite the fact 138 EV g ETHICS & PUBLIC POLICY 140 142 144 . L. R Group on U.S. Adherence to the Berne Convention ht Convention: Its Place in United States Copyri LAW, g ht Protection and the United States: The Impact of the ht Protection and the United States: The Impact of g This was a treaty with Latin American This was a treaty g 137, 174 (1993)). TAN Y ’ 141 the Senate never ratified the treaty, in part the Senate never OC Four decades later, when Congress signifi- Four decades later, when Congress , 19 S S 143 145 Implications of the Prospective Revisions of the Berne Convention 513, 587 (1986) (cited in Edward Samuels, ht Law g ht Convention on Existin . 94-1476, at 135 (1976). g OPYRIGHT RTS note 103, at 40-41. O International Copyri . 1329, 1329 n.1 (1947). . N EV supra EP The Inter-American Copyri , 41 J. C at 1329 n.1. at 1333. . L. R . at 42. NOTRE DAME JOURNAL OF Id. Id. Final Report of the Ad Hoc Workin Id Although the issue of retroactive copyrights was initially not Although the issue of retroactive ARV .-VLA J.L. & A ht Law g 146 Similarly, membership in the Berne Convention was under serious Similarly, membership in the Berne While after the first federal copyright statute, Congress never first federal copyright statute, Congress While after the OLUM 144. Comment, 145. Melville Nimmer, 143. 146. H.R. R 141. Note, 142. 147. 138. (Breyer, J., dissenting). Golan v. Holder, 132 S. Ct. 873, 909 (2012) 139. Ochoa, 140. , 60 H UNESCO Universal Copyri and the United States Copyri 10 C Law in Copyri 426 contained extension term of the applicability preclude expressly domain. public in the to works therein \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 16 2-MAY-14 13:51 addressed when the United States ultimately joined the Berne Conven- addressed when the United States ultimately group set up to study U.S. tion in 1988, the Congressional working that addressing it was necessary for adherence to the Convention noted of the Convention, but that it U.S. rights holders to gain the protection issues. also raised practical, legal, and constitutional consideration for most of the twentieth century.consideration for most of the twentieth In 1935, the Senate but later withdrew their approved the U.S. joining the Convention, amended to comply with the Con- approval until copyright law could be vention’s requirements. removed works from the public domain on the scale that they did in the the public domain on the scale that removed works from retroactive doing so and granting foreign authors URAA, the idea of is hardly news.copyright protection States signed In 1946, the United in Literary, Convention on the Rights of the Author the Inter-American Works. Scientific, and Artistic due to concerns over retroactivity. due to concerns over cantly revised copyright law with the Copyright Act of 1976, the cantly revised copyright law with the Berne Convention was cited by possibility of future membership in the extension of the copyright Congress as one of the reasons for term. nations that provided for retroactive copyrights for foreign works that for retroactive copyrights for foreign nations that provided comply with the public domain due to a failure to entered into the formalities. required U.S. copyright vention was signed in Washington, D.C. by twenty-one member states of in Washington, D.C. by twenty-one vention was signed Union, the Pan American working on a wholesale revision of copyright law that would ultimately that would law of copyright revision wholesale on a working short-term term extensions passed a series of 1976 Act, they become the benefit of the long-term would receive the that the works to ensure they were contemplating. term extension strated that Congress believed they lacked the power to restore copy- power to restore they lacked the Congress believed strated that domain. works in the public rights to prepared statement before a congressional committee considering the prepared statement before a congressional 34929-nde_28-1 Sheet No. 218 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 218 34929-nde_28-1 34929-nde_28-1 Sheet No. 219 Side A 05/07/2014 15:37:06 . EV 427 150 , 24 See also L. R Today, 151 AYTON ht: From Private g , 28 U. D of the Public Domain OLLOWING g F . L.J. 775, 789 (2009). OMAIN by ‘the public.’” Prior to this, terms used to Prior to this, terms NT D 149 OLDER owned & E UBLIC s of the Public Domain . H g RTS P , THE COPYRIGHT CLAUSE COPYRIGHT , THE A OLAN V Contribution to the Understandin . L. 411, 424 (2006). G ARDOZO NFO , released in 1891 (before the application of the , released in 1891 (before the application ins and Meanin g , 26 C & I TATUS OF THE Ori Toward an Alternative Normative Framework for Copyri note 116, at 151 (prepared statement of Christopher Schroder, As one scholar noted, however, not all courts neces- As one scholar noted, however, not hts S note 116, at 157 (Prepared Statement of Christopher Schroder, note 116, at 157 (Prepared Statement of Christopher g HE 153 supra note 149, at 416 (noting that this term has been defined as the oppo- 148 , OMPUTER Although in most situations, the answer to this question has Although in most situations, the answer at 414. supra demonstrate why the answer is important. J. C IV. T GATT Id. GATT supra 152 During the debate surrounding the URAA, Congress operated During the debate surrounding the The Supreme Court first used the phrase “public domain” to first used the phrase “public The Supreme Court In a sense, both Justices Ginsburg and Breyer are correct in their are correct in and Breyer both Justices Ginsburg In a sense, Golan 152. Mary Wong, 151. Tyler Ochoa, 153. 150. 149. Vincenzo Vinciguerra, 148. ARSHALL Black’s Law Dictionary Property to Human Ri 215, 236–37 (2002) (emphasis added). Office of Legal Counsel). Vinciguerra, site of copyright). Office of Legal Counsel) apparent . . . that something very simi- (“[I]t should have been provide more vigorous implementation of lar to draft section 104A would be passed to the Berne Convention.”) J. M Although the change in the terms used may appear to be merely super- Although the change in the terms used ficial, it is potentially significant.one scholar noted, the first edition As of property), defines public property term “public domain” to intellectual as that which is “considered as being 2014]pass- that noted Legal Counsel of of the Office a representative URAA, authors to foreign protection copyright retroactive law affording ing a was inevitable. GOLAN V. HOLDER \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 17 2-MAY-14 13:51 little impact on those that use the public domain, the URAA and cases little impact on those that use the public like describe intellectual property in 1896. describe intellectual a property right to works in the under the assumption that no one had public domain. interpretation of the historical precedent in removing works from the removing works precedent in of the historical interpretation public domain. stat- federal copyright since the initial While no statute of the on the scale the public domain removed works from ute had cen- most of the twentieth has existed for idea of doing so URAA, the tury. closely follow- without precedent, but any party The actions were placed on notice in copyright law would have been ing developments possibility. that this was a real sarily share this view and instead, strongly imply that everyone rather sarily share this view and instead, strongly describe real property, such as “public property” ordescribe real property, “common prop- of works. used to refer to the same body erty,” were commonly however there is much debate over the exact meaning of the phrase however there is much debate over “public domain.” that applying the term to a work Some scholars argue to the work, a right of public use, can signify a lack of private ownership or both. 34929-nde_28-1 Sheet No. 219 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 219 34929-nde_28-1 34929-nde_28-1 Sheet No. 219 Side B 05/07/2014 15:37:06 155 Jus- [Vol. 28 164 Instead, it 163 While she cites the 157 Again, this language fails to Again, this language Indeed, in this case the dis- case the in this Indeed, firmly rejects any idea of own- firmly rejects 160 ETHICS & PUBLIC POLICY 154 Likewise, she cites Article 18 of Likewise, she cites 159 Golan LAW, 162 The only sources that she cites to support this sources that she The only No. Civ.01-B-1854(BNB), 2005 WL 914754, at *14 (D. Colo. No. Civ.01-B-1854(BNB), 2005 WL 914754, at , 132 S. Ct. 873, 892 (2012) (“[N]o one, after the copyright 132 S. Ct. 873, 892 (2012) (“[N]o one, after , 156 the Act itself is silent as to the status of works whose the Act itself is silent note 151, at 260 (noting that recent court decisions have used note 151, at 260 (noting that recent court 158 supra , 132 S. Ct. at 903. , 132 S. Ct. at 892. at 906. . . NOTRE DAME JOURNAL OF Id. Golan Golan Id Id or in the URAA. 161 The dissenting opinion also uses the phrase “fallen into the public The dissenting opinion also uses the Justice Ginsburg’s opinion in opinion Justice Ginsburg’s Despite the shaky foundation, Justice Ginsburg’s opinion could not Despite the shaky foundation, Justice 164. 161. Copyright Act of 1976, Pub. L. 94-533, 90 Stat 2541. 162. Uruguay Round Agreements Act, Pub. L. 103-465, 108 Stat. 4809 (1994). 163. 158. 159. Copyright Act of 1976, Pub. L. 94–533, 90 Stat. 2541. 160. 157. 155. Golan v. Gonzalez 156. Golan v. Holder 154. Ochoa, term has expired, acquires ownership rights in the once-protected works.”). term has expired, acquires ownership rights the terms “public property” or “common property” along with other language that the terms “public property” or “common implies public ownership). Sept. 4, 2007). ership rights to works in the public domain without any reference to without any reference public domain to works in the ership rights dispute. the ongoing 428 public domain. owns the no one than \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 18 2-MAY-14 13:51 domain” in its discussion of copyrights, but does not make the same domain” in its discussion of copyrights, majority opinion did. claim about property rights that the copyright term has expired and uses the phrase “public domain” only expired and uses the phrase “public copyright term has excluded from act and does so in reference to works twice in the entire protection. the scope of copyright proposition are ambiguous and do not directly speak to any ownership and do not directly are ambiguous proposition by the public in the work. or lack of ownership the Berne Convention to claim that rights to works do not re-vest in the to claim that rights to works do the Berne Convention copyright term, rather that upon expiration of the general public, but works “fall[ public domain.” ] into the state anything concerning property rights, and it is hard to see how a property rights, and it is hard state anything concerning used to construe States joined in 1988 should be treaty the United statute passed in of common law precedent and a nearly two centuries 1976. in the Copyright Act of Indeed, this phrase exists nowhere 1976 trict court in addressing the musicians’ claim that the URAA violated the URAA claim that the musicians’ addressing court in trict if even property,” “public ideas remain that Clause held the Copyright solely in the creator. ideas are vested to fully express those the rights Copyright Act of 1976 to argue that rights only vest in authors at the 1976 to argue that rights only vest Copyright Act of time of creation, recognizes that the public had some belief that they had ownership recognizes that the public had some and implies that those rights may rights to works in the public domain than other property rights. exist, but are less “well-established” tice Breyer makes no reference to Justice Ginsburg’s statement about a tice Breyer makes no reference to Justice in his opinion. lack of ownership rights at any place not recognize property rights in be clearer: the Supreme Court does the public domain. impacted by this are those who The parties most source material that was at the time have created derivative works using in the public domain, but is no longer. The URAA takes away their 34929-nde_28-1 Sheet No. 219 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 219 34929-nde_28-1 34929-nde_28-1 Sheet No. 220 Side A 05/07/2014 15:37:06 172 429 In 169 end Plays a Role, g What the Court ulti- and did not challenge and did 173 167 ument, a Rock Le g Instead, they rigidly applied 171 , THE COPYRIGHT CLAUSE COPYRIGHT , THE This was one of Congress’s biggest con- biggest of Congress’s was one This ONCLUSION .every Court watchers were prepared for C , one principle emerges: those who choose , one principle emerges: those who , In Supreme Court Ar 165 Golan Stewart The Court declined to follow an earlier Second Cir- The Court declined Adam Liptak and ,create a granted the petitioner the right to an author Time will tell if any creators of a derivative work try to of a derivative tell if any creators Time will See 170 , 132 S. Ct at 883 n.15. , 132 S. Ct. at 892 n.33. It should be noted that the musicians never argued about musicians never be noted that the It should 168 at 219–21. at 221–23. Golan 166 Id. Id. Golan Golan , Oct. 5, 2011, at B2. IMES Following oral arguments, there was much speculation as to how Following oral arguments, there was From However harsh this decision may appear, the Court earlier took an decision may appear, the Court earlier However harsh this 173. Justice Kagan worked on this case as Solicitor General and did not take part in 169. Copyright Act of 1909, ch. 320, 35 Stat. 1075. This is no longer the case today 170. Stewart v. Abend, 495 U.S. 207, 212 (1990). 171. 172. 167. (2004). The musicians’ claim Golan v. Ashcroft, 310 F. Supp. 2d 1215, 1220 168. 165.103-465, § Uruguay Round Agreements Act, Pub. L. 514, 108 Stat. 4809, 4976 166. the proceedings. N.Y. T under the Copyright Act of 1976 as amended by the CTEA which grants a single term of under the Copyright Act of 1976 as amended protection with no renewal provisions. was based upon loss of access to works that were once in the public domain. was based upon loss of access to works that to create derivative works do so at their own peril.to create derivative works do so at their It matters not what of free access to the work were at the creator’s reasonable expectations created.the time their derivative work was The Court is willing to copyright law so as not to ignore equity and strictly apply statutory their rights under law. deprive the creator of the source work (1994). 2014] the to use to the right for without paying work their own to exploit right material. source underlying GOLAN V. HOLDER \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 19 2-MAY-14 13:51 the Court would rule in possible outcome including a four-to-four tie. possible outcome including a four-to-four cuit decision based off of similar facts, where the court determined that off of similar facts, where the court cuit decision based work the right to allowed the creator of the derivative equitable reasons continue exploiting the derivative work. losing access to a derivative work they created, to a derivative losing access as Congress feared. argue a takings claim, under the Copy- those who created derivative works even harder line to right Act of 1909.were granted for that Act, because copyrights Under to secure the subject to renewal, it was necessary two separate terms terms. work separately during both right to make a derivative cerns with passing the URAA and one of the primary reasons behind reasons of the primary one URAA and the with passing cerns used who had previously for parties of accommodations the inclusion the work. property and copyright law and noted that a party who relies on an property and copyright law and noted risk the renewal may not occur. expectation of renewal does so at the the district court granting summary judgment, rejecting their due pro- rejecting their summary judgment, court granting the district cess claims. mately decided, however, is perhaps best described as a continuation mately decided, however, is perhaps Stewart v. Abend do so again in the the first term and promised to derivative work during right during the died before he could grant the second term, but renewal term. 34929-nde_28-1 Sheet No. 220 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 220 34929-nde_28-1 34929-nde_28-1 Sheet No. 220 Side B 05/07/2014 15:37:06 g opin- [Vol. 28 anythin Golan 175 in her in her is an increase in the is an increase . Gins- Justice Indeed, Eldred Golan Eldred and ETHICS & PUBLIC POLICY , but in both cases only one other LAW, merely gave these works the term of merely gave these works the term Eldred Eldred Golan and note 103, at 45. 132 S. Ct. 873, 888 (2012). , Golan In many ways, this can be considered to be a virtual In many ways, this seem to imply that there has to be some limit to this seem to imply that there has to be some supra stood for the proposition that Congress could grant stood for the proposition that Congress 174 Golan Golan NOTRE DAME JOURNAL OF Finally, it is notable that due to turnover on the Court, only five Undoubtedly one effect of one effect of Undoubtedly While This evisceration of the utilitarian mandate in many ways reflects of the utilitarian mandate in many This evisceration that appears on Con- After this opinion, the only real limitation 175. Indeed, Mary Bono argued (perhaps jokingly) for a copyright term of “forever 174. Golan v. Holder power and deference given to Congress when enacting legislation sub- enacting legislation to Congress when deference given power and Copyright Clause.ject to the they will it clear that The Court has made their in determining laws as a whole to consider copyright continue constitutionality. authority after the right holder becomes too attenuated from the authority after the right holder becomes creator. Justices heard both from the public domain. and natural rights theories The utilitarian that underlie protection they could have expected had they been eligible for copy- protection they could have expected of creation and complied with right protection in the U.S. at the time all the necessary formalities. should not be interpreted as This opinion has the power to remove standing for the idea that Congress burg wrote both opinions and frequently cites and frequently opinions wrote both burg ion.yet disrupts established to precedent, opinion is faithful Her the public domain. to works in concerning access expectations copyrights to works in the public domain, it only applied to a large but copyrights to works in the public domain, discrete number of works. less one day.” Ochoa, 430 in decision earlier of their expansion and \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 20 2-MAY-14 13:51 evisceration of the utilitarian mandate of the Copyright Clause. utilitarian mandate of the Copyright evisceration of the It is not be said to of a copyright regime that could hard to conceive of existing of new works or the dissemination encourage the creation ones. the twentieth of the natural rights theory over the growing influence century. States joining is perhaps best seen in the United This change grounded in an international copyright regime the Berne Convention, philosophy.the natural rights that Congress Despite this, it is unlikely a new copyright as to test the waters and try and pass would be so bold end. some claim of it serving a utilitarian statute without making Even give Congress tremendous defer- so, the Court has shown that they will ence in interpreting such claim. must provide for a fixed expira- gress’s power is that any copyright law tion date at some point in the future. It is of no consequence if that multiple times, it would have expiration date had been extended expecting to secure only fifty-six resulted in some cases from an author (if they exercised their years of protection following publication not just during their entire renewal right) to a copyright that persists entire lifetimes.lifetime, but also during their grandchildren’s If can expect to receive yet recent history is any indication, authors will uphold it. another term extension, and the Court 34929-nde_28-1 Sheet No. 220 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 220 34929-nde_28-1 34929-nde_28-1 Sheet No. 221 Side A 05/07/2014 15:37:06 . 431 Eldred Both decisions had the sup- had the decisions Both 176 . Justice Alito joined the court after , THE COPYRIGHT CLAUSE COPYRIGHT , THE Golan 176. Justice Stevens, who filed a separate dissenting opinion in Eldred v. Ashcroft, 537 U.S. 186 (2003), retired prior to 2014] Breyer. Justice joined in dissent Justice GOLAN V. HOLDER \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 21 2-MAY-14 13:51 port of the majority of the Court’s “conservative” wing and a plurality of a plurality wing and “conservative” the Court’s of of the majority port wing.the “liberal” over the next some massive shift In short, barring it is decide to retire, currently over seventy four of the Justices decade as off of their holding. Court will back unlikely the of copy- This new era time. for quite some appears to be around right law 34929-nde_28-1 Sheet No. 221 Side A 05/07/2014 15:37:06 Side A 05/07/2014 Sheet No. 221 34929-nde_28-1 34929-nde_28-1 Sheet No. 221 Side B 05/07/2014 15:37:06 \\jciprod01\productn\N\NDE\28-1\NDE112.txt unknown Seq: 22 2-MAY-14 13:51 34929-nde_28-1 Sheet No. 221 Side B 05/07/2014 15:37:06 Side B 05/07/2014 Sheet No. 221 34929-nde_28-1