As Lessig described it, “from the there’s-no-way-in-hell-you’ll-win-that-one department,” the case challenging the US roll-back of public domain status for foreign works that entered the pd here because their copyright owners failed to comply with US formalities at a time we had them, has gotten new life. Golan v. Holder (the defendant is always named as the current Attorney General — the case started out as Golan v. Ashcroft) was sent back to the district court to consider whether the roll-back violated the First Amendment because it changed the traditional contours of copyright, to the extent that those who had come to depend on a work’s being in the public domain lost their ability to use those works whose copyrights were restored.
Lessig is understandably excited about this case. It relies on the little glimmer of hope that Justice Ginsburg planted in Eldred v. Ashcroft, that the First Amendment really does have something to say about what Congress can do when it tinkers with the Copyright Act, but not in most cases. She said that the case of Eldred was not one where Congress had changed the traditional contours, so the “internal safeguards” such as fair use and first sale, were sufficient to keep things kosher with the Constitution. Et voila, Eldred lost. But now the court in Golan has indicated that a law that takes works long in the public domain, works that people have likely counted on being able to use freely, and just magically grants them a copyright lasting for the term they would have had if their owners had done everything they were supposed to do to get such a copyright (copyright notice, for example), goes too far. The Uruguay Round Agreements Act (URAA) from the General Agreement on Tarriffs and Trade (GATT) is that law.
All that said, there’s still that limitation: it is unconstitutional to the extent it conflicts with reliance on public domain status taking place before the URAA was passed and/or went into effect. That isn’t quite the same as saying that it is simply unconstitutional. And this is just round 1. The decision will be appealed, no doubt. But Lessig is right. We will no doubt see more of this case. At least it suggests that there is a limit to what Congress can do for copyright owners at the expense of some, if not all members of, the public.