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IP/Entertainment Case Law Updates

Golan v. Holder

Tenth Circuit reverses district court’s grant of summary judgment for plaintiffs and holds that Section 514 of the Uruguay Round Agreements Act does not violate the First Amendment.

Plaintiffs are orchestra conductors, educators, performers, publishers, film archivists, and motion picture distributors who rely on artistic works in the public domain for their livelihoods. Section 514 of the Uruguay Round Agreements Act (URAA), 17 U.S.C. §§ 104A, 109, provided copyright protection to certain foreign works, removing them from the public domain in the United States. As a result, plaintiffs were either prevented from using these works or were required to pay licensing fees to the copyright holders – fees that were often cost-prohibitive for plaintiffs.

Plaintiffs filed this action, challenging the constitutionality of the Copyright Term Extension Act, Pub. L. No 105-298, § 102(b), (d) (1998), and Section 514 of the URAA, seeking declaratory and injunctive relief. Initially, the district court granted summary judgment to the government. On appeal, the U.S. Court of Appeals for the Tenth Circuit concluded that plaintiffs’ challenge to the Copyright Term Extension Act was foreclosed by the Supreme Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003). See Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007) (“Golan I”). The Tenth Circuit also held that “[Section] 514 of the URAA ha[d] not exceeded the limitations inherent in the Copyright Clause” of the United States Constitution. The court then remanded the case to the district court to “assess whether [Section] 514 is content-based or content-neutral,” and to apply the appropriate level of constitutional scrutiny.

On remand, the parties filed cross-motions for summary judgment. The government and plaintiffs agreed that Section 514 is a content-neutral regulation of speech, and thus should be subject to intermediate scrutiny. The district court concluded that “to the extent Section 514 suppresses the right of reliance parties [i.e., those exploiting the works prior to the restoration of their copyrights] to use works they exploited while the works were in the public domain,” Section 514 was unconstitutional under the First Amendment. See Golan v. Holder, 611 F. Supp. 2d 1165 (D. Colo. 2009). Consequently, the district court granted plaintiffs’ motion for summary judgment, and denied the government’s motion.

The government appealed, contending that Section 514 of the URAA does not violate the First Amendment, and plaintiffs cross-appealed, contending that the statute is facially invalid and that they are entitled to injunctive relief. In the ruling at hand, the Tenth Circuit reversed the district court’s grant of summary judgment for the plaintiffs, holding that Section 514 of the Uruguay Round Agreements Act does not violate the First Amendment.

In reviewing the constitutionality of a content-neutral regulation of speech, the court applied an intermediate level of scrutiny. According to the court, when applying intermediate scrutiny, a content-neutral statute “will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” See Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997).

The government argued on appeal that Section 514 is narrowly tailored to advancing three important governmental interests: (1) attaining indisputable compliance with international treaties and multilateral agreements, (2) obtaining legal protections for American copyright holders’ interests abroad, and (3) remedying past inequities of foreign authors who lost or never obtained copyrights in the United States.

The Tenth Circuit held that “the government has demonstrated a substantial interest in protecting American copyright holders’ interests abroad, and Section 514 is narrowly tailored to advance that interest. Consequently, the district court erred in concluding that Section 514 violates plaintiffs’ First Amendment rights.” (footnote omitted)

Explaining its holding, the court said that, at its core, plaintiffs’ challenge to Section 514 “reflect[s] little more than disagreement over the level of protection” that reliance parties should receive. Congress sought to balance the interests between American copyright holders and American reliance parties. In so doing, Congress crafted a nuanced statute that offered some protections for both of these competing interests. It is not our role to opine on the best method of striking this balance. . . . Plaintiffs may have preferred a different method of restoring copyrights in foreign works, but that is not what the Constitution requires; as long as the government has not burdened substantially more speech than necessary to further an important interest, the First Amendment does not permit us to second guess Congress’s legislative choice.” The court reversed the judgment of the district court and remanded with instructions to grant summary judgment in favor of the government.

Regarding plaintiff’s argument on cross-appeal that Section 514 is unconstitutional on its face, the court held that plaintiffs failed to meet their “heavy burden” in raising a facial constitutional challenge. According to the court, facial challenges to statutes are generally disfavored as facial invalidation “is, manifestly, strong medicine that has been employed by the [Supreme] Court sparingly and only as a last resort.” (citation omitted). The court stated that plaintiffs failed to meet this burden “as their arguments on appeal are largely foreclosed by our conclusion that Section 514 does not violate their freedom of expression, as well as by our previous decision in Golan I, which we are not free to revisit, as law of the case.”