On the morning of a critical day of Internet action whose underpinnings find themselves in the First Amendment and the state of copyright law in the United States, the Supreme Court issued its decision in the public domain works copyright case Golan v. Holder.
Golan involved works that had previously been in the public domain which had been removed due to Section 514 of The Copyright Act. The case marked a continuance of the debate over the Copyright Clause of the United States Constitution that was broached in the 2003 Supreme Court decision in the Eldred v. Ashcroft case. Both cases deal with the period of time, specifically, the language of "limited time" and the length of protection, that copyright holders should be afforded under the Copyright Clause. The argument of the petitioners in both cases has been that the continual extension of copyright terms effectively counters the bargain afforded content creators in Article III, Section 8 of the Constitution, that they get protection for works created with the thought that eventually this protection would cease and the works would be available for public use.
In the opinion delivered on behalf of the majority of the Supreme Court, Justice Ginsburg cites to the Eldred v. Ashcroft case and that Court's treatment of "limited time":
The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Eldred is largely dispositive of petitioners' claim that the Clause's confinement of a copyright's lifespan to a "limited Tim[e]" prevents the removal of works from the public domain. In Eldred, the Court upheld the Copyright Term Extension Act (CTEA), which extended, by 20 years, the terms of existing copyrights. The text of the Copyright Clause, the Court observed, contains no "command that a time prescription, once set, becomes forever 'fixed' or 'inalterable,' " and the Court declined to infer any such command.
Not surprisingly, Justice Breyer dissented along with Justice Alito. Breyer wrote the dissenting opinion, which was joined by former Justice Stevens, in the Eldred case in 2003.
The specter of Eldred is prominent in the decision. Eldred was a constitutional challenge posed against the 1998 Copyright Term Extension Act and its extension of the term of protection of copyrights.
The importance of this decision should not be lost on those intimately concerned with the Stop Online Piracy Act (SOPA) and PROTECT IP (PIPA). The decision is indicative of the way that Congress and the courts continue to treat copyright regardless of the merits of the "commons" that can be found in both debates surrounding the openness of the Internet and the utility of works in the public domain for society.