Stanford Center for Internet and Society

On January 4, the Supreme Court denied the petition for cert in Kahle v. Gonzales. On that same day, in a victory for CIS, the 10th Circuit refused the government's petition for rehearing in Golan v. Gonzales.

After our win in Golan v. Gonzales, the government has petitioned the Tenth Circuit for a rehearing of the case, which decided that the Uruguay Round Agreements Act altered the "traditional contours" of copyright and therefore triggers First Amendment Review.

The Attorney General's office seeks a standard - that First Amendment review is only triggered by changes in the idea/expression dichotomy or in fair use - that the Supreme Court has already rejected in Eldred. Our response to the petition for rehearing urges the Tenth Circuit adhere to its carefully reasoned opinion in this case.

The Tenth Circuit handed us a momentous victory today, holding that the Uruguay Round Agreements Act ("URAA") altered the "traditional contours of copyright protection" by resurrecting copyright protection for works that had fallen into the public domain, thus contravening the "bedrock principle of copyright law that works in the public domain remain in the public domain."

While this decision does not invalidate the URAA, it does hold that the URAA must pass either strict or intermediate First Amendment scrutiny on remand.

Read the full decision here.

It's almost midnight here on the east coast, but I'm wide awake -- happily -- because I have some truly *great* news to report. The 10th Circuit just handed down its ruling in the appeal of Golan v. Gonzales. And we have won! The First Amendment lives! (at least in the 10th Circuit).

Golan v. Gonzales has been briefed and argued in the Tenth Circuit, and we are awaiting a decision. Government's brief is here.

Today we filed the opening brief in our appeal to the Tenth Circuit. We argue that the URAA – by restoring copyright to materials that are in the public domain – departs dramatically from the “traditional contours of copyright protection” by violating a fundamental design of the Constitution’s Progress Clause (Art. I, sec. 8, cl. 8): that works passing into the public domain stay there. Download the brief here.

Last week, the District Court ruled on the parties' pending cross motions for summary judgment. The Court denied Plaintiff's motion for partial summary judgment, and granted the government's summary judgment motion on all claims. This means the case is over at the trial court level. Although Plaintiffs had collected and produced much evidence of the harms associated with the enactment of the URAA, the Court was unpersuaded that the factual issues should preclude summary judgment or enter its analysis of the parties' claims.

At the end of March, the parties jointly filed a Pretrial Order in preparation for trial in June. A pretrial conference was held before Magistrate Judge Boland on April 11. Our new lead trial attorney, Ted Herhold of the law firm Townsend & Townsend, appeared on behalf of Plaintiffs.

In February, Plaintiffs filed a summary judgment motion on the Copyright Clause claim. The motion has been fully briefed. Here is the Government's opposition, and Plaintiff's replybriefs.

The Government's reply brief in support of summary judgment was filed on Nov. 24, 2004. No hearing date is presently scheduled for this motion.