Thursday 21 October 2010

Going for Five? Golan Tries Again

Several months ago, The 1709 Blog reported on the 10th Circuit decision of Golan v. Holder, also known as Golan IV.  Yesterday, the Stanford Center for Internet and Society announced that is has filed a petition for writ of certiorari with the United States Supreme Court on behalf of the Golan side.

The entire petition is available from CIS here (pdf).  For those that have been following the Golan saga, the petition contains little surprises.  As in the case’s previous incarnations, Golan’s group (the Petitioners) is arguing that the US Copyright Act provision reinstating copyright for foreign works that had fallen out of copyright due to non-compliance with previously required formalities violates the US Constitution.  The Constitution sections at issue are the First Amendment – guaranteeing freedom of speech and expression, and the Progress Clause – introducing intellectual property rights with a ‘limited time’ time-limit.

When Golan III was argued, the US government claimed that the provision of the Copyright Act at issue was necessary in order for the US to comply with its duties under the Berne Convention.  The 10th Circuit decided Berne was not an issue because it found there to be this other interest the government had to protect, the interest of US authors abroad.  The petition argues that the Golan III 10th Circuit panel decision side-stepped the real issues (as mentioned above) and rested its decision on this made-up theory of protecting US author’s rights abroad.  It states that in this way and others the Golan III decision goes against prior Supreme Court decisions.  Interestingly, in one of the places where this argument is made, most of the cases cited are actually patent cases and not copyright cases.  That difference may be something the US government side can latch onto when trying to distinguish the cases and show that the rules do not apply to here.

For those who are not familiar with US procedures.  This filing does not mean that the Supreme Court will hear the case.  It only means that the Golan group thinks the Supreme Court should hear the case.  The Court will decide on its own whether there will be a Golan V.

Photo Credit: five CC-BY woodley wonderworks available at

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