NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY Volume 9 | Issue 2 Article 3 3-1-2008 Golan v. Gonzalez: The tS alemate between the First Amendment and Copyright Continues Daniel Choi Follow this and additional works at: http://scholarship.law.unc.edu/ncjolt Part of the Law Commons Recommended Citation Daniel Choi, Golan v. Gonzalez: The Stalemate between the First Amendment and Copyright Continues, 9 N.C. J.L. & Tech. 219 (2008). Available at: http://scholarship.law.unc.edu/ncjolt/vol9/iss2/3 This Notes is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of Law & Technology by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 9, ISSUE 2: SPRING 2008 GOLAN V. GONZALEZ: THE STALEMATE BETWEEN THE FIRST AMENDMENT AND COPYRIGHT CONTINUES Daniel Choi' In the wake of a long history of copyright decisions that have been sparse in terms of First Amendment analysis, the Tenth Circuit in Golan v. Gonzales clearly addresses the First Amendment. This Recent Development analyzes the decision in Golan and argues that while the First Amendment concerns were properly recognized, the ultimate resolution of the Tenth Circuit was incorrect. The remand to the district court solely on the issue of whether the Uruguay Round Agreements Act is a content-based or content-neutral restriction of free speech leaves the district court with too narrow of a test for the First Amendment issue in Golan. This Recent Development presents an alternative solution to the issue presented in Golan and discusses the relevant factors to be consideredupon remand to the district court. I. INTRODUCTION Project Gutenberg2 is an online repository of books currently containing over 100,000 books that can be downloaded at no charge.' Since books on Project Gutenberg are in an electronic format ("eBooks"), dozens of classics such as Pride and Prejudice by Jane Austen, The Raven by Edgar Allen Poe, and The Adventures of Sherlock Holmes by Sir Arthur Conan Doyle can be easily downloaded.' Though it might seem silly to provide books 'J.D. Candidate, University of North Carolina School of Law, 2009. Thanks to my friends and family for their support and patience during the writing of this Recent Development. Thanks also to Professor Deborah Gerhardt and Professor Hugh Stevens, and to the fantastic staff of the North Carolina Journal of Law & Technology for their valuable feedback and help. 2 Project Gutenberg, http://www.gutenberg.org (last visited Feb. 8, 2008) (on file with the North Carolina Journal of Law & Technology). See id 4 See id. 219 220 N.C. J.L. & TECH. [VOL. 9: 219 in an electronic format, considering that reading a book on a computer screen is hardly as comfortable as curling up on a couch, improved technologies, such as personal digital assistants ("PDAs"), have created the ability to read them anywhere, just like a paperback book. Project Gutenberg succeeds partly because many of the works are part of the public domain and, therefore, have no copyright restrictions.' Often, copyrights can strictly limit the way a work can be used, such as preventing the user from downloading the work onto a PDA or other device for reading. For example, Adobe eBook Reader, a computer program that can display eBooks, stores the user's library of eBooks on his or her computer.' While Adobe eBook Reader currently does not have the functionality to move eBooks onto a PDA,' once the functionality is added, the program and the licensing scheme could work together to strictly limit the use of the eBooks stored in the program, possibly preventing transfers of eBooks to a PDA.' This limitation does not exist with eBooks obtained from Project Gutenberg. Another benefit of Project Gutenberg is its cost. Downloading and reading eBooks from Project Gutenberg is completely free. Curious readers can explore books from an author or genre that they may not have read had they been forced to pay. In contrast to situations where cost may be prohibitive, Project Gutenberg's selection of free books allows readers to be adventurous and read books they know nothing about, perhaps based on little more than a whim. Further, free and equal access to knowledge contained in 5 Gutenberg: No Cost or Freedom?, http://www.gutenberg.org/wiki/Gutenberg: No Cost or Freedom%3F (last visited Feb. 8, 2008) (on file with the North Carolina Journal of Law & Technology). 6 LAWRENCE LESSIG, FREE CULTURE 151 (Penguin Books 2005) (2004). Now, Adobe makes and distributes an eBook reader program called Adobe Digital Editions. See Adobe Digital Editions, http://www.adobe.com/products/ digitaleditions (last visited Feb. 27, 2008) (on file with the North Carolina Journal of Law & Technology). 7 Adobe Digital Editions: FAQ, http://www.adobe.com/products/digitaleditions /faq (last visited Feb. 27, 2008) (on file with the North Carolina Journal of Law & Technology). 8 See LESSIG, supra note 6, at 151. SPRING 2008] Golan v. Gonale 2212 eBooks can empower individuals who simply cannot afford to purchase books. Other similar projects that make extensive use of works in the public domain have met mixed success. LibriVox, for example, is a successful online effort to create audio versions of all the books in the public domain.' The International Music Score Library Project ("IMSLP") attempted to collect musical scores of works in the public domain until it was stopped under threat of a lawsuit.'o Created by a Canadian student, known as Feldmahler, in his spare time, IMSLP was the largest collection of public domain musical scores in the world." A problem, however, arose with IMSLP due to the difference in copyright term lengths in different countries. In particular, Austria's copyright terms are twenty years longer than Canada's; therefore, some of the works which had become part of the public domain in Canada were still protected under Austrian copyright. 2 As the musical scores were made available over the Internet to worldwide users, IMSLP arguably violated the rights of the Austrian copyright owners.' Universal Edition of Austria, owners of some of the relevant copyrights, sent Feldmahler a cease and desist letter that led to his decision to remove the works from his website. He lamented the end to this project, stating: On Saturday October 13, 2007, I received a second Cease and Desist letter from Universal Edition .... [A]fter lengthy discussions with very knowledgeable lawyers and supporters, I became painfully aware of the fact that I, a normal college student, has [sic] neither the energy nor the money necessary to deal with this issue in any other way than to agree with the cease and desist, and take down the entire site. I cannot 9 LibriVox, http://librivox.org/ (last visited Feb. 8, 2008) (on file with the North Carolina Journal of Law & Technology). 'o IMSLP, http://www.imslp.org/ (last visited Feb. 8, 2008) (on file with the North Carolina Journal of Law & Technology). " See Michael Geist, Music Copyright in the Spotlight, BBC NEWS, Nov. 2, 2007, http://news.bbc.co.uk/2/hi/technology/7074786.stm (on file with the North Carolina Journal of Law & Technology). 12 IMSLP, supra note 10. '3 Id. 222 N.C. J.L. & TECH. [VOL. 9: 219 apologize enough to all IMSLP contributors, who have done so much for IMSLP in the last two years.14 In a fraction of the time that it took to build the collection, the threat of a lawsuit shut down one of the greatest repositories of musical works available in the world. Lawrence Golan, a teacher and performer of foreign musical works," also ran afoul of the copyright laws in a similar situation. Some of the more recognizable composers among the musical works that Golan performs include Sergei Prokofiev, Dmitri Shostakovich, and Igor Stravinsky. 6 Golan relied upon, and believed, that the works should be in the public domain, and he was partly correct." In the United States, they would have been in the public domain.'" However, because Congress passed section 514 of the Uruguay Round Agreements Act 9 ("URAA"), the 14 Feldmahler, Open Letter, IMSLP, Dec. 23, 2007, http://imslp.on-wiki.net/ Openletter (on file with the North Carolina Journal of Law & Technology). '5 Golan v. Gonzales, 501 F.3d 1179, 1182 (10th Cir. 2007). 6 id. '7 Id. 18 Id. "9 Pub. L. No. 103-465, 108 Stat. 4809, 4976-80 (1994) (codified at 17 U.S.C. 104A, 109 (2000)). Section 104A provides: (a) Automatic protection and term.- (1) Term.- (A) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration.... (h) Definitions.-For purposes of this section and section 109(a): ... (6) The term "restored work" means an original work of authorship that- (A) is protected under subsection (a); (B) is not in the public domain in its source country through expiration of term of protection; (C) is in the public domain in the United States due to- (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility; SPRING 2008] Golan v. Gongale 2232 works were figuratively lifted out of the public domain and had their copyrights in the United States restored. For Golan and others similarly situated, the restoration of the copyrights meant that certain works could not be performed without paying a licensing fee.