Talk:Golan v. Holder

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Former good article nominee Golan v. Holder was a Social sciences and society good articles nominee, but did not meet the good article criteria at the time. There are suggestions below for improving the article. Once these issues have been addressed, the article can be renominated. Editors may also seek a reassessment of the decision if they believe there was a mistake.
August 8, 2006 Good article nominee Not listed


Why doesn't this article state the outcome of this case? One would have to be very familiar with the other cases to determine the applicability of those cases to this one. If possible, please add the actions of the court and how that affects this particular lawsuit.

Stevenmitchell 20:20, 4 April 2006 (UTC)

Good Article[edit]

Sorry, this article currently doesn't meet the Good Article criteria. It is too short and stubby, and also poorly referenced. Please revise it and I will be happy to review its re-nomination. Message me if you need help. The article also lacks images which are crucial to the GA nomination. I would recommend you to find some stock images of people in the trial. --GoOdCoNtEnT 22:23, 8 August 2006 (UTC)

Merge proposal[edit]

I suggest we merge the section Challenges to the URAA restorations in Uruguay Round Agreements Act to this article to keep it all in one place. There can of course still be a short summary of Golan v. Gonzales in Uruguay_Round_Agreements_Act. --Bensin (talk) 20:57, 31 October 2009 (UTC)

To do so, you'd first need a correct case summary. Note that Golan was a reliance party, and what Judge Babcock essentially ruled was that the URAA did not adequately protect the rights of such reliance parties. (A reliance party is someone who used a PD work, relying on its PD status, prior to the enactment of the URAA, kept using the work after the enactment, and whose right to keep using the (since then copyrighted) work was encumbered by the effects of the URAA.) That's all.
So, the current summary (which quotes judge Babcock out of context and which suggests the rule were "once PD, always PD") is wrong. Two sentences further on Babcock clarifies this by writing "Accordingly—to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain—Section 514 is substantially broader than necessary to achieve the Government’s interest." See also Tyler Ochoa on Golan v. Holder for an analysis of the decision and its implications. BTW, I don't see a link to Babcock's decision in the article. Here it is. Lupo 07:58, 4 November 2009 (UTC)
So the bottom line on this is only that - for example - any individual or organisation exploiting a PD film prior to URAA should be allowed to continue to exploit it; it doesn't give carte blanche to any new individual or oganisation to start exploiting the same film now? Nick Cooper (talk) 11:34, 4 November 2009 (UTC)
Right. Lupo 16:09, 4 November 2009 (UTC)
The Tenth Circuit (when remanding the case back to Babcock) did observe that anyone including reliance parties could exploit PD works. But the court couldn't rule definitively except on the merits of the plaintiff's specific case. It did note that in Eldred, the earlier attempt to impose First Amendment restrictions on copyright, the facts were different because "the most the Eldred plaintiffs could show was a weak interest in ‘making other people’s speeches.’ By contrast, the speech at issue here belonged to plaintiffs when it entered the public domain".
So "Right" is a really good summary, but bear in mind that in both Babcock's judgement and the Tenth Circuit remand order it's clearly stated that "Once PD, always PD" was in fact the traditional interpretation. Of course the later appeal judgment rendered it moot, but SCOTUS granted certiorari on that (and other issues); "The Court agrees to examine whether Congress may restore copyright protection for a creative work once that legal shield has expired and the work has entered the public domain". So "Once PD, always PD" is a live issue again. SCOTUS doesn't usually grant cert. unless they think the lower court erred. I'd guess the Supremes will reverse the Tenth Circuit and make the PD films PD again, the WTO can take a hike, but no-one needs to guess, just wait and see.
The First Amendment protects against violations against free speech by the US government. It doesn't protect against violations of free speech by private citizens, which is why defamation laws exist, and why the Copyright clause usually trumps it. But in URAA section 514 the US government was making changes to the traditional interpretation of Public Domain, so First Amendment claims had to be at least considered.
Remember, Babcock had originally tossed all the plaintiff's claims, both against the Copyright Term Extension Act and the one saying the First Amendment prohibited PD clawback.The appeal court had told him not so fast, SCOTUS precedent holds that the First Amendment might conceivably undermine a copyright case. "On appeal, the Tenth Circuit reversed, holding: “since § 514 has altered the traditional contours of copyright protection in a manner that implicates plaintiffs’ right to free expression, it must be subject to First Amendment review.” Golan, 501 F.3d at 1197."
So Babcock considered it. I'm looking right now at Babcock's April order invalidating URAA section 514 on First Amendment grounds; (in the United States District Court for the District of Colorado) Civil Case No. 01-cv-01854-LTB. Having duly found the First Amendment prevented the government acting in this way, poor Judge Babcock was reversed on appeal by the Tenth Circuit which had told him to examine the issue in the first place!
Anyway, it was the Tenth Circuit which said that traditionally "once PD, always PD". Babcock merely quoted them; "In reaching its conclusion that Section 514—by removing works from the public domain—“altered the traditional contours of copyright protection,” the court first noted “the bedrock principle of copyright law that works in the public domain remain there.” See Golan, 501 F.3d at 1187. --Sdoradus (talk) 01:46, 24 May 2011 (UTC)

Clarification of ex post facto clauses[edit]

The one thing this cases doesn't seem to touch on is the ex post facto clause for the both the federal and state governments in that they make something criminal back to the point it was once legal. -- 09:58, 26 March 2010 User:BruceGrubb

If you mean that they create a law retrospectively criminalizing a lawful act, it's worth bearing in mind most copyright offences are civil, not criminal. There are some criminal copyright violations, but to make use of a work in the public domain is not one of them. --Sdoradus (talk) 10:40, 27 May 2011 (UTC)
Section 9 - Limits on Congress just says "No Bill of Attainder or Ex post facto law shall be passed." It makes no distinction between criminal or civil law--that distinction was made in Calder v. Bull (1798) and since copyright violation is both a criminal and civil law this section would still apply.--BruceGrubb (talk) 12:04, 27 July 2011 (UTC)
That would only be the case if people were subject to prosecution or suits for making use of such works during the window when they were free of copyright restructions... AnonMoos (talk) 16:04, 26 March 2010 (UTC)
It would be a brave copyright holder who did that while SCOTUS review were still in progress, but once the case is decided later in 2011, expect such prosecution and lawsuits to appear prontissimo. The Tenth Circuit decision of 2010 observes that the URAA allows for that. Even those who didn't actually copy the PD item, but made a derivative work before the URAA took away the PD status, are liable to prosecution - it's all 'making use of such works'. The court does allow for negotiation about the amount payable, but if they can't agree the courts will decide the dollars. Specifically, on page 7 of the appeal holding, the court says: "Section 514 provides further protections for reliance parties who, prior to restoration, created a derivative work that was based on a restored work. Under Section 514, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation ... [17 USC] §104A(d)(3)(B)." --Sdoradus (talk) 01:49, 24 May 2011 (UTC)

IMSLP submits amicus curiae[edit]

On June 12, 2011, the International Music Score Library Project (IMSLP) announced that they will submit an amicus curiae brief in the case; a group of Harvard Law School students, supervised by Professor Charles Nesson, will be representing IMSLP.[ac 1] -- Michael Bednarek (talk) 12:00, 15 June 2011 (UTC)

  1. ^ "Golan v. Holder: Should Shostakovich be Public Domain?" by Feldmahler, IMSLP journal, June 12 2011. Accessed June 15 2011

needs update[edit]

"Oral argument is scheduled for October 5, 2011." -- AnonMoos (talk) 23:44, 4 November 2011 (UTC)

Affirmed what decision?[edit]

"On January 18, 2012, the Supreme Court affirmed the decision 6-2." As written, it is difficult to parse what decision was affirmed, i.e. how the case was ultimately decided. — Preceding unsigned comment added by (talk) 01:11, 20 May 2014 (UTC)