The Supreme Court yesterday issued a ruling on the Golan copyright case which we’ve discussed here a few times before. The case involved whether works that had previously been within the public domain in the USA could be taken back out of it in order to comply with the Berne Convention international copyright treaty.

Disappointingly, the court ruled that Congress could indeed remove the works from the public domain—Congress did have the power to retroactively extend copyright on these works in order to bring the US into treaty compliance. The court rejected the idea that the First Amendment applied for orchestras that had been making a living performing these works without paying royalties because they could still perform them by paying royalties.

It’s not too big of a surprise, really; this is mostly the same court that issued a similar ruling on Eldred vs. Ashcroft nine years ago. And while it is disappointing, there is a danger that we can make too big a deal out of it. Unlike with Eldred vs. Ashcroft, the public domain was not really the central issue here—the main import of the decision regards what Congress can do in general to enforce compliance with international treaties. Copyright was just the subject of this particular treaty.

What might be more worrying are the implications this might have for things like the ACTA treaty that was signed last October, which at one point included three-strikes and global DMCA-style language. If Congress can remove works from the public domain—something that by and large had not happened before—what else can’t they do?


  1. Frank, Congress already approved this retroactive removal of works from the public domain when they ratified the treaty, and they were the ones responsible for the 20 year extension to copyright terms, which is why we haven’t had any new books enter into the public domain in the last 13 years. Sure, you can write your congressman, but unless they have another bill extending copyright under consideration, they’re just going to thank you for writing to them, and probably throw it into the bit bucket or recycling bin, depending on what type of letter it is.

  2. Yes Bruce, that’s correct. However, supreme court justices respond to legal arguments and the constitution. They serve for life and, so, don’t change as rapidly as our representatives in congress. The Supreme Court having spoken means that the fight has to shift to congress. Those folks are nowhere near as permanent. They do keep tallies of voter sentiment on issues of the day.
    So, write to your representatives and if they don’t respond as you think they should, vote against them in the next election. One can also join or form organizations that focus on certain issues (AARP is a sterling example) and they will accept your donations and hire lobbyists. There are numerous consumer organizations that might fit this bill.

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