Equal Protection for Shostakovich? Justices Question Lawyers in Copyright Case

Benjamin Rasmussen for The Chronicle

Lawrence Golan, a music professor seen here conducting the U. of Denver´s Lamont Symphony Orchestra, is the lead plaintiff in a copyright case being considered by the Supreme Court. At issue is what music and other materials scholars can use without jumping through legal hoops.
October 05, 2011

Chief Justice John G. Roberts Jr. invoked Jimi Hendrix. Justice Ruth Bader Ginsburg trumpeted Dmitry Shostakovich. And Justice Stephen G. Breyer plucked out Jewish music from the 1930s.

Those musicians and other long-gone creators made cameo appearances in the marble-and-velvet arena of the U.S. Supreme Court on Wednesday, as the justices heard oral arguments in a high-stakes copyright case whose outcome will affect much of academe, dictating what materials scholars can use in books and courses without jumping through legal hoops.

At issue in the case, Golan v. Holder, No. 10-545, is whether Congress can remove works from the public domain and place them back under copyright protection. It did so in 1994 to align American policy with an international copyright treaty, restricting access to books by H.G. Wells, films by Alfred Hitchcock, and artwork by Pablo Picasso, to name just a few famous examples.

A lawyer for the plaintiffs, Anthony Falzone, argued on Wednesday that lawmakers violated the U.S. Constitution's First Amendment and Copyright Clause by yanking away millions of works that had been public property for years. For the lead plaintiff, Lawrence Golan, a University of Denver music professor, that step limited his orchestra's ability to perform canonical pieces by composers like Shostakovich, Stravinsky, and Prokofiev. The law he wants to overturn has also hobbled libraries' efforts to digitize and share books, films, and music.

But Mr. Falzone barely managed to get out five sentences of his argument before Justice Ginsburg tore into it. In 2003, she wrote the opinion in a key predecessor to this case, Eldred v. Ashcroft, in which the court rejected an online book publisher's challenge to another law that had extended copyrights by 20 years. On Wednesday, she seemed equally impatient with Mr. Falzone's challenge to the copyright restoration, which affected foreign works that had fallen into the public domain in the United States while still under copyright abroad.

Justice Ginsburg compared Shostakovich and Stravinsky to the American composer Aaron Copland, who got copyright protection: "What's wrong with giving them the same time that Aaron Copland got?"

What's wrong, among other things, Mr. Falzone said, is that the restoration was "unprecedented in American copyright law," and that it devalued the public domain because it means Congress might yank stuff out of it any time.

But Justice Sonia Sotomayor quibbled with Mr. Falzone's assertion that, as she summarized it, "there has never been a historical experience with Congress taking public works out of the public domain." The government, represented by Donald B. Verrilli Jr., the solicitor general, seized on that disagreement. When Congress enacted the Copyright Act of 1790, Mr. Verrilli argued, it did grant copyright protection to existing works, "including many, many, many works that were freely available."

Free-Speech Issue

Another of the plaintiffs' claims—that restoration violated the speech rights of people who used public-domain works—seemed to win sympathy from Chief Justice Roberts, who cited that argument in questioning Mr. Verrilli.

"There is something, at least at an intuitive level, appealing about Mr. Falzone's First Amendment argument," the chief justice said. "One day I can perform Shostakovich; Congress does something: The next day I can't. Doesn't that present a serious First Amendment problem?"

Later, prodding Mr. Verrilli further, he drew on classic rock to sketch out a hypothetical argument.

"What about Jimi Hendrix, right?" he said. "He has a distinctive rendition of the national anthem." Say the anthem is suddenly entitled to copyright protection that it lacked before. "He can't do that, right?"

Mr. Verrilli defended the restoration as "the price of admission" to the international copyright system. Otherwise, he said, the intellectual property of American creators would lack protection in foreign countries.

But several justices questioned how the restoration squares with the Copyright Clause of the Constitution, which refers to promoting "the progress of science and useful arts."

"In Eldred, there was a law that might, at least in principle, have elicited a new book," Justice Breyer said. "And in this case, by definition, there is no benefit given to anything at all that is not already created."

Outside the courthouse, one of Mr. Golan's supporters, Charles R. Nesson, saw a "breakthrough" in how the justices framed their questions in Wednesday's arguments.

"They were seeing it from the public point of view and actually valuing the public domain, as opposed to so many times in the past, just seeing it from the copyright point of view," said Mr. Nesson, a professor at Harvard Law School and founder of the Berkman Center for Internet & Society. "I didn't come here optimistic. But I leave this argument optimistic."

Another expert, however, predicted that the justices would uphold the copyright restoration.

"The court will find that the restoration provisions are a rational and reasonable exercise of Congressional power," Marshall Leaffer, distinguished scholar in intellectual property law at Indiana University's Maurer School of Law, said in a written statement.

There is no set time period in which the justices have to hand down a decision in the case, said Scott Markley, a court spokesman. But cases argued in a term are typically decided prior to summer recess, which begins at the end of June.