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Golan v. Gonzalez

In a challenge to the Copyright Term Extension Act (“CTEA”) and § 514 of the Uruguay Round Agreements Act (“URAA”), Lawrence Lessig attempted to atone for his “sins” by losing Eldred v.
, 537 U.S. 186 (2003). Caveat, I don’t personally come down that hard on Lessig for his unfortunate defeat. However, Professor Lessig has been a major class act in taking responsibility (too much, I think) for that loss. See How I Lost the Big One.

In what was essentially an attempt to make an end run around Eldred, the plaintiffs attacked the CTEA’s “life plus seventy years” copyright term. See Golan v. Gonzalez, ___ F.3d ____ (10th Cir. 2007). The Plaintiffs contended that “the CTEA extends existing copyrights in violation of the “limited Times” provision of the Constitution’s Copyright Clause.”

While I personally believe that they are right, the 10th Circuit held that Eldred was too closely on point for the 10th to be able to issue such a holding. The result is bad, but I don’t think that anyone can criticize the 10th for that decision.

The URAA, on the other hand, took works that were in the public domain, and then tossed them right back into copyright-land. The Plaintiffs argued:

With regard to the URAA, plaintiffs contend § 514 shrinks the public domain and thereby violates the limitations on congressional power inherent in the Copyright Clause. In addition, plaintiffs argue that § 514’s removal of works from the public domain interferes with their First Amendment right to free expression.

The 10th agreed that the plaintiffs showed “sufficient free expression interests in works removed from the public domain to require First Amendment scrutiny of § 514.”

Poor Lessig. When you read “How I Lost the Big One,” you can imagine how much the man’s shoulders must hurt from bearing the cross of being “the guy who lost Eldred.” His humility is woefully uncommon in legal academia, and for that alone, he remains one of my heroes. Unfortunately, he lost again, and I don’t see what is left of this case going his way either.

Chin up, Lessig, you did your best.

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