Entertainment on the Supreme Court docket

What cause could unite the Eagle Forum, American Library Association and Google?

Think Alfred Hitchcock, Picasso and Peter and the Wolf.

Throw in the Constitution and international law, and you have a most intriguing case on the Supreme Court's docket for the new term that started Monday.

It doesn't carry the moral weight of the death penalty cases the court will decide. Nor is it likely to have the political ramifications of the justices' review of the health insurance reform law, which could happen this term.

But the case of Golan v. Holder (Docket No. 10-545) has multiple wonky dimensions.


For Eagle Forum, it's about big government. For the librarians, broad access to information. For Google, the ability to innovate.

Then there's the question of what the founding fathers meant in giving Congress power to "promote the Progress of Science and useful Arts" — and what the first Congress intended when it exercised that power in the Copyright Act of 1790.

Any college student who's gotten a threatening letter from a lawyer over music downloads that weren't intended to be free knows a bit about copyright.

It's about creativity and transformation — and money: who's making it, who's paying it.

Copyright law allows the creator of a book, movie, photo, piece of music or other work to make money off it for a certain period of time, during which anyone who wants to use it must pay a fee or get permission. Unless, of course, the point of the use is parody — such as "Family Guy's" perversion of Disney tunes — or limited quotation for a review or school class.

But once a copyright expires, the work goes into the public domain and anyone can use it free.

There's always tension between original creators and those who want to use their works, whether it's to make their own profit, do research or simply derive personal enjoyment at minimal cost.

The legal briefs in the Golan case spar over a 1994 federal law designed to implement an 1886 international treaty that the United States got around to signing in 1989.


The law revived U.S. copyright restrictions on an untold number of compositions, books, movies and other items that were created in foreign countries but had been used in this country free for years.

Legal briefs say the works include Prokofiev's "Peter and the Wolf," Hitchcock film "Number Seventeen," J.R.R. Tolkien's "The Hobbit" and art by M.C. Escher and Picasso.

College professors had been teaching the music, performers had been buying sheet music and making recordings, business owners had purchased movies and resold them, but the law made continuation impossible or prohibitively expensive. They argue it's a First Amendment violation caused by Congress exceeding its constitutional authority.

No free speech rights to see here, Attorney General Eric Holder counters: Congress had to comply with a treaty, and protecting copyrights for foreign works will help U.S. artists enforce their rights abroad.

The most interesting reading, though, is in the friend-of-the-court briefs.

"There is no plausible basis for arguing that restoring copyright protection for the works created by long dead authors in a Communist country that did not recognize property rights in any way promotes the progress of science and the useful arts," the American Library Association argues. "While their struggles to express themselves artistically in the face of brutal totalitarian repression are worthy of great admiration, providing their heirs with royalties does not fulfill the constitutional purpose of the Copyright Clause."

The Eagle Forum argues that, "Withdrawing a work from the public domain is a form of censorship that is simply incompatible with the First Amendment. ... If Congress wants to bolster the rights of foreign writers and authors to advance a goal of harmony, then its approach must fit within one of its enumerated powers, such as using the Spending Clause to directly provide any value deemed appropriate."

And the Motion Picture Association, which unsurprisingly sides with strong copyright enforcement, argues that only a "narrowly defined class of foreign works" is at issue, nothing as significant as the Bible, Shakespeare's plays or "Little Red Riding Hood."


Besides, the MPA says, the works at issue can continue being used "unless and until the copyright holder provides notice of intent to enforce its restored copyright."

Funny, the film industry's attitude toward the copyrighted material of its moneyed and powerful members isn't nearly that nonchalant.

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