Yesterday the United States Supreme Court issued a truly regrettable decision in the much anticipated copyright case Golan v. Holder. At issue in this case was nothing short of whether the United States Congress has the authority to restore copyrights in works that were in the public domain, or in other words whether Congress has the authority to strip works from the public domain and grant copyright protection. In one of the more intellectual dishonest decisions I have ever read, the U.S. Supreme Court, per Justice Ginsburg, determined that Congress can pretty much do whatever it is that they want with respect to copyrights. Removing works from the public domain and restoring copyright protection is said to be a power granted to the Congress under the Constitution, and there are no legitimate First Amendment concerns.

To all those who can read the Constitution it has to be clear that the Supreme Court’s decision in Golan v. Holder is absurd. It is a ridiculous decision that lacks intellectual honesty and defies common sense. Further, the facts of this case provide ample ground for the suspicions of many who wonder why it is that the United States is so interested in losing its identity and compromising Constitutional principles in order to facilitate some ill conceived plan to join the world community. Simply stated, treaties and international law cannot trump the Constitution. With all due respect to the six Justices who ruled in favor of stripping works from the public domain, the Constitution does not support this decision and any attempts to argue to the contrary are insulting and show a contemptuous understanding of the history and role of intellectual property in America.

This fiasco starts with the Berne Convention for the Protection of Literary and Artistic Works, which took effect in 1886. The Berne Convention is the principal international agreement governing copyright law. Berne’s 164 member states agree to provide a minimum level of copyright protection and to treat authors from other member countries as well as they treat their own. The Berne Convention, however, also mandates certain minimum protections for copyrighted works. Of particular importance to this case is the fact that under Article 18 of the Berne Convention a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin.

Throughout most of the 20th century, the only foreign authors eligible for Copyright Act protection in the United States were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States. Additionally, from the first Copyright Act through much of the 20th century, U.S. copyright protection was conditioned on compliance with certain statutory formalities, such as registration of the copyrighted work, renewal of the copyright registration and affixing to published copies notice of copyrighted status. Failure to comply with these formalities would prevent a copyright in the United States. Thus, there were numerous foreign works that did not enjoy protection within the United States and were, in fact, within the public domain.

When the United States joined the Berne Convention in 1989, it did not protect any foreign works that had previously fallen into the U. S. public domain. In 1994, however the ante was upped thanks to the Agreement on Trade-Related Aspects of Intellectual Property Rights, which mandated implementation of Berne’s first 21 articles. Failure to implement the first 21 articles would result in an enforcement action by the World Trade Organization. Failure to comply with a WTO ruling would subject the United States to tariffs or cross-sector retaliation.

In response, Congress applied the term of protection available to U. S. works to preexisting works from Berne member countries. Section 514 of the Uruguay Round Agreements Act (URAA) granted copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: (1) The United States did not protect works from the country of origin at the time of publication; (2) the United States did not protect sound recordings fixed before 1972; or (3) the author had not complied with certain U.S. statutory formalities. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed for- malities incompatible with Berne.

As a result of Congress enacting §514 foreign works that were previously in the public domain in the United States were “restored” to.

The petitioners in this case were orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. In fact, these petitioners detrimentally relied on the laws of the United States and engaged in various business and creative activities under the knowledge and rightful belief that works within the public domain were capable of being freely used. They argued that by passing §514 of the URAA Congress exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.

Initially, in the United States Federal District Court for the District of Colorado the parties agreed, and the District Court determined, that Section 514 is a content-neutral regulation of speech subject to intermediate First Amendment scrutiny. The District Court determined that while the Government does have a “legitimate interest in complying” with the Berne Convention, the exceptions in Article 18(3) demonstrate that “Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech.” The District Court also held the Government had presented no evidence sufficient to show that providing protection for foreign works beyond that required by the Berne Convention would generate any additional benefits to U.S. authors.

On appeal the Tenth Circuit reversed the judgment of the District Court and held that Section 514 does not violate the First Amendment. The Tenth Circuit held the Government has an important interest in securing foreign copyright protection for U.S. authors independent of any interest in complying with Berne. It concluded that Congress had substantial evidence to conclude that providing enhanced protection for foreign authors in the U.S. might induce foreign nations to reciprocate by providing enhanced protection for U.S. authors abroad, whether or not that enhanced protection was required by Berne. The Tenth Circuit acknowledged that Congress might have been able to comply with the Berne Convention without compromising Petitioners’ speech interests, but ultimately concluded that whether another path to implement the Berne Convention existed was not material because Section 514 was narrowly tailored to the broader interest of creating enhanced protection for U.S. authors.

Before diving into the decision of the Supreme Court let’s set the table a bit by exploring the Constitutional Clause at issue. Congressional power to grant both patents and copyrights is derived from Art. I, Sec. 8, Clause 8 of the United States Constitution, the so-called Intellectual Property Clause. To patent attorneys Art. I, Sec. 8, Clause 8, will forever be known as the Patent Clause. For attorneys specializing in copyright law this clause is known as the Copyright Clause. The clause is referred to in this copyright case as the “Copyright Clause.”

The Copyright Clause to the United States Constitution gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In something of a historical oddity, at the time of the Constitution the Clause mentions “science” relating to copyrights and “useful arts” relating to patents. That was how the terms were used back in the late 1700s. Notwithstanding the language peculiarity, exactly how is progress promoted by snatching works from the public domain and restoring copyright protection? A good question, but one that did not receive a thoughtful or logical answer.

According to the Supreme Court, “[t]he text of the Copyright Clause does not exclude application of copyright protection to works in the public domain.” Said another way, this Supreme Court does not see anything within the Copyright Clause that would prevent Congress from granting copyright protection to works that have previously fallen into the public domain. This has to be music to the ears of Disney executives! For many years now the standing joke is that the copyright term is the life of Mickey Mouse plus 75 years. Every time Mickey Mouse is about to fall into the public domain it seems that Congress just extends the life of copyright protection. Now Congress will not have to engage in such shenanigans any longer and can simply allow Mickey Mouse to fall into the public domain and then enact legislation that says Mickey Mouse (and presumably all Disney copyrights) enjoy another 75, 100 or maybe 150 years of protection.

I have to wonder whether this case would come out the same if a patent invention were at issue. Would the Supreme Court have allowed Congress to re-patent something that had fallen into the public domain? The same Constitutional provision apply to both patents and copyrights, and despite the fact that the Supreme Court has routinely interpreted the language differently even they would have to appreciate that if the Clause says works of art can be removed from the public domain then inventions would likewise have to be capable of removal from the public domain, correct?

It is absurd to contemplate the patenting or re-patenting of inventions that have fallen into the public domain, but before today it was absurd to think that the Supreme Court would allow for the re-copyrighting of works that had fallen into the public domain. Although, careful observers certainly knew this ridiculous ruling had to be possible given the Supreme Court’s decision in Eldred v. Ashcroft, which basically read out of the IP Clause the “limited time” language and found that Congress could grant copyrights of whatever duration they wanted provided they were not perpetual. So perpetual minus 1 day would suffice I suppose. Do you see how absurd this area of law has become?

Despite the very real language and limitations of the IP Clause to the United States Constitution the Supreme Court has granted Congress plenary power. Perhaps they were asleep that morning in Constitutional Law. Someone really needs to give the Justices a history lesson! They also likely have an actionable case against whoever taught them Constitutional Law. They should get their money back from their Ivy League Law Schools for failure to teach them that the Constitution does not grant omnipotent genie powers to Members of Congress. For crying out loud they should hardly be entitled to exercise the limited powers granted in Article I, Section 8! Congress shouldn’t be allowed to do anything without adult supervision… but I digress.

In my opinion the reason the Copyright Clause argument was so powerful was the fact that §514 fails to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. The petitioners argued that because §514 affects only works already created it simply cannot meet the Clause’s objective. In the face of a correct and logically consistent argument like this what did the Supreme Court say? They decided that the creation of new works is not the sole way Congress may promote “Science.” In fact, the Supreme Court went on to do what they did throughout the opinion, which was say that Eldred already answered the question, which is of course nonsense. Of course, even if that were true the fact that the Supreme Court has previously made egregious mistakes shouldn’t be a legitimate rationale to perpetuate those mistakes and make wholly new egregious mistakes.

If you are a creator or inventor you probably did like to read that the Supreme Court said that Congress is empowered to determine whatever intellectual property regimes serve the ends of the Clause. So I guess that means that Congress gets to both enact intellectual property laws and gets to interpret them and the Constitution, which I had previously thought was the prerogative of the Supreme Court of the United States beginning back with Marbury v. Madison. My non-Ivy League law education must be lacking because I was SURE that it was the Supreme Court that was supposed to interpret the Constitution and the limited powers granted to Congress under Article I, Section 8 were not plenary power to determine whatever ends justify the means… but I digress.

Creators and inventors were also likely quite pleased to read that “Progress of Science” does not exclusively require there be incentives for creation. For example, the Supreme Court explained that Congress could determine that progress is promoted inducing the dissemination of existing works is an appropriate means to promote science. The reason this should be so well received by inventors is because everyone knows that there are a great many reasons innovations are not available on the market. For example, someone may have patented an item and was just unable to get the project to move forward for one reason or another. The next person, perhaps a generation later, who wants to patent and move forward decides not to when they learn they cannot obtain a patent. So under the Supreme Court’s rationale here in Golan v. Holder Congress could determine that progress would be promoted by disseminating the invention and the only way that can be accomplished is to grant exclusive rights to make the dissemination commercial attractive and feasible. Thus, the logic underpinning the Golan v. Holder decision (and I do say that with my tongue planted firmly in my cheek) must be that inventions that are in the public domain could be re-patented at the discretion of Congress.

Even the once mighty and revered First Amendment was no match to the plenary power granted to Congress by the Constitution to do whatever they please with respect to intellectual property rights. According to the Supreme Court there is nothing in the historical record, subsequent congressional practice, or Supreme Court jurisprudence that suggests there should be any First Amendment issues associated with snatching works that were once in the public domain and granting them copyright protection.

Unbelievable really. Exactly which part of “Congress shall make no law… abridging the freedom of speech” is confusing to those Ivy League educated know-it-alls on the Supreme Court? Do they actually understand copyright law at all? Do they realize that the petitioners could engage in all kinds of activity freely prior to the restoration of copyrights and then after the restoration they can engage in such activities only if they pay licensing fees to the copyright owner? The fact that the Supreme Court does not see any viable First Amendment issue would be nearly laughable if it weren’t so depressingly sad.

There is something fundamentally unfair and un-American about changing the rules of law in mid-stream. I am personally offended that works have been snatched from the public domain. Anyone with even a basic sense of fairness would have grandfathered in existing uses, which did not happen. The Supreme Court has once again let us down.