Ginsburg, The Originalist (Golan v. Holder)
On Wednesday, the Supreme Court released its opinion in Golan v. Holder, upholding as constitutional Section 514 of the Uruguay Round Agreements Act.
The provision restored copyright protections to certain works that had been in the public domain in the U.S. but were protected elsewhere. The challengers contended that Congress had exceeded its power under the Copyright Clause of the Constitution and had run afoul of the First Amendment.
After the jump, you'll find out what an otherwise arcane opinion on Section 514 of the URRA has to do with Scalia and Ginsburg on an elephant. Are you going to get that kind of insight from SCOTUSBlog? I think not.
Justice Ginsburg, writing for the court, rejected the challenge. I found two things particularly interesting about the case.
First, Justice Ginsburg adopted an uncharacteristically Scalia-like, "originalist" approach to constitutional law as a large part of her reasoning. She noted that "Historical practice corroborates our reading of the Copyright Clause . . . ." There followed a Nino-esque history lesson which concluded:
As we have recognized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 . . . men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884).
Nothing warms my heart quite like citation to a 19th century precedent and originalist analysis. Usually, I have to turn to Justice Scalia for that sort of thing. But Justices Ginsburg and Scalia are known to be great friends. They have even been known to share the occasional elephant ride. (See above). I suppose one can hardly share such things as elephant rides without one having one's legal reasoning influenced.
One other thing caught my eye. The challengers noted that Congress can only grant copyright protection for a "limited" time under the Constitution. They argued that if Congress can put things back under protection once they are in the public domain, the power is no longer limited. It is potentially perpetual.
Sound familiar? The argument is very like the challenges to the Affordable Health Care Act--i.e., "If Congress can require Americans to purchase a product or service under the Commerce Clause, what possible limitation is there to legislative power?"
Justice Ginsberg and the majority (which included her elephant partner) rejected the argument, at least on this occasion. Even if Congress might some day be up to no good, there was no indication that was present in this case:
Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achievable. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U. S., at 198–200, 209–210. In aligning the United States with other nations bound by the Berne Convention,and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights.
Mischief managed.
I'm watching the Court's term a little more closely this year as I am slated to give the SCOTUS update at the UT Conference on State and Federal Appeals at the end of May. So keep watching this space for more in-depth court watching that you won't find anywhere else.
It's all about the elephants.
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