In 6-2 Opinion in Golan, Supreme Court Rejects First Amendment Challenge to URAA Copyright Restoration

Today the Supreme Court announced its decision in Golan v. Holder. Justice Ginsburg wrote for the majority, summarizing the petitioners’ claims and the essence of the majority’s ruling as follows:

Petitioners include orchestra conductors, musicians, pub¬lishers, and others who formerly enjoyed free access to works §514 [of the Uruguay Round Agree¬ments Act], removed from the public domain. They main¬tain that the Constitution’s Copyright and Patent Clause, Art. I, §8, cl. 8, and First Amendment both decree the invalidity of §514. Under those prescriptions of our high¬est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there.

In accord with the judgment of the Tenth Circuit, we conclude that §514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

Justice Ginsburg drew heavily on Eldred v. Ashcroft in considering the interplay between congressional authority pursuant to the Copyright Clause and the protections of the First Amendment. 

In dissent, Justice Breyer, joined by Justice Alito, was more receptive to the petitioners’ First Amendment concerns, writing: 

Taken together, these speech-related harms (e.g., restricting use of previously available material; reversing payment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. For present purposes, I need not decide whether the harms to that interest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitution as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is important enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright related justifications for the serious harms, including speech-related harms, which the Act seems likely to impose.

Patently-O provides a quick recap of the elements of the ruling.