Good news for the public domain?

The 10th Circuit handed down its opinion (PDF here) in the case of Golan et al. v. Gonzales yesterday. Golan challenged the constitutionality of the Uruguay Round Agreements Act (URAA), which restored copyrights to many thousands of non-US creative works. As was argued in our own case, Kahle et al. v. Gonzales, Golan asserted that Congress departed from the "traditional contours of copyright protection" and limited free speech so as to violate the First Amendment, in this case by pulling works out of the public domain.

We argued in the 9th Circuit that the removal of renewal formalities constituted a departure from copyright's traditional contours, and lost. But Golan's First Amendment assertion convinced the 10th, who remanded the case back to the District Court for a rehearing.

So how is this good news? There's now a split between the 9th and 10th Circuits on the issue of copyright and First Amendment rights, and this split makes it much more likely that the Supreme Court will grant certiorari (i.e., accept our petition) and potentially reverse the 9th Circuit decision.

William Patry presents a contrary perspective here.

There are lots of people to thank for this. Larry Lessig and Chris Sprigman explain the issues much better than we can, and give credit where it's due. -- RP