Ochoa on Golan v. Holder and Copyright Restoration

6 04 2009

By Tyler Ochoa

[Eric’s note: my colleague Tyler Ochoa is an expert on copyright law (among other things), and I’ve occasionally posted contributions from him before. This time, he weighs in on the Golan decision from Friday.]

The U.S. District Court for the District of Colorado has issued a decision in Golan v. Holder, No. 01-cv-01854 (D. Colo. Apr. 3, 2009), on remand from Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007). Two years ago, the Tenth Circuit held that §514 of the Uruguay Round Agreements Act (codified at 17 U.S.C. §104A) “altered the traditional contours of copyright protection” by restoring copyrights in works of foreign origin that were previously in the public domain in the United States, and that the law was therefore subject to First Amendment scrutiny. The Tenth Circuit remanded the case to the District Court to determine whether §514 violated the First Amendment. The District Court has now held that §514 is unconstitutional.

The parties agreed that §514 was a content-neutral regulation of speech, which will be sustained “if it advances important government interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” The parties also agreed that compliance with Article 18 of the Berne Convention, which requires the restoration of foreign copyrights that were in the public domain for reasons other than expiration of the duration of protection, was an important governmental interest. Therefore, the question was whether §514 was “substantially broader than necessary” to serve that interest.


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