Golan v. Holder: In Praise of Breyer’s Dissent

With last week’s flurry of activity over SOPA/PIPA, perhaps you missed the Supreme Court’s decision in Golan v. Holder [PDF]. The opinion makes it unequivocally clear that it is well within the purview of Congress to remove works from the public domain and reinforces the Court’s opinion in Eldred regarding Congress’s authority to extend copyright duration. In one fell swoop, the majority managed to express a legal opinion out of touch with technological and social reality or related changes in communication.

Many of us in the library, cultural, scholarly and educational communities expected some new idea or directive to be expressed by the Court in this much-anticipated opinion. Why otherwise would a case be accepted for review?  If Eldred [PDF] already defined the power of Congress to alter the term of copyright, then the same would presumably apply to the facts in a case like Golan. However, the opinion reinforces the status quo of Eldred after years of litigation and millions of dollars of legal fees, and is ultimately a grave disappointment.

But the dissent is a gift. Justice Breyer specifically mentions the University of Michigan, the Institute of Museum and Library Services, and the HathiTrust Digital Library in a discussion of the administrative costs imposed on cultural organizations that attempt to identify possible rights holders and, where possible, seek permission (page 12 of the dissent for inquiring minds). He frames the problem of administrative cost, indefiniteness, and fear of legal exposure among “film preservers, museums, universities, scholars, database compliers and others” resulting in a chilling effect on making often obscure or special materials of little commercial value available for educational purposes in digital form via the Internet (see page 12 of the dissent).  And all this would be unnecessary were the works in question to be treated as being in the public domain. Justice Breyer states that the law in question in Golan “diminishes Americans’ preexisting freedom to use formerly public domain material in their expressive activities…without a countervailing benefit” (see page 14 of the dissent). A few more highlights of the dissent include:

• “The statute before us does not encourage anyone to produce a single new work.” (page 1 of the dissent)
• “…[T]he statute inhibits dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books – books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world. ” (page 2) 
• “The upshot is that text, history, and precedent demonstrate that the Copyright Clause places great value on the power of copyright to elicit new production….But does the [Copyright] Clause empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly for those who need to for scholarly, educational, or cultural purposes – all without providing any additional incentive for production of new material?” (pages 7-8)

In chatting with my colleague Professor Dwayne K. Buttler, he speculated that maybe in the short run, it’s possible that this case will cause courts to “look more closely at fair use as a social necessity in both the cultural and economic realms of creativity and commerce to avoid systemic collapse of the copyright regime.” Fair use as a sort of release valve is an option available to courts to calibrate fair and reasonable balance.

The dissent also observes that “when a copyright law is primarily backward looking the risk is greater that Congress is trying to help known beneficiaries at the expense of badly organized unknown users who find it difficult to argue and present their case to Congress” (page 15 of the dissent). I think those days are over; the outcry over SOPA, PIPA, and the impact of the blackout indicates a pretty robust organization of unknown users – the voice of the public.  Congress would do well to listen.

NB: Thanks to Professor Dwayne Buttler, Evelyn J. Schneider Endowed Chair for Scholarly Communication at the University of Louisville’s Ekstrom Library, for his insights.