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U.S. Supreme Court

Supreme Court Upholds Recopyright Law; Breyer and Alito Note ‘Speech Implications’ in Dissent

Posted Jan 18, 2012 12:17 PM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court has upheld a 1994 recopyright law that removed thousands of foreign artistic works from the public domain and gave them copyright protection.

The law, passed to help the United States comply with international treaties, does not violate the First Amendment rights of musicians, publishers, orchestra conductors and others who wanted to access the works, the court ruled in an 6-2 decision. (PDF) Nor does the law violate the Constitution’s copyright and patent clause, Justice Ruth Bader Ginsburg wrote for the majority.

The public domain is not “a territory that works may never exit,” Ginsburg wrote. “Nothing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.”

In a dissenting opinion, Justice Stephen G. Breyer argued the law violated the copyright clause and noted “speech implications.” He was joined by Justice Samuel A. Alito Jr.

"The copyright clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute,” Breyer wrote.

The American Bar Association had filed an amicus brief supporting the power of Congress to implement treaty obligations. Justice Elena Kagan did not participate in the case, Golan v. Holder.

Prior coverage:

ABAJournal.com: "Chief Justice Roberts Wants to Know: ‘What About Jimi Hendrix?’ "

ABAJournal.com: "ABA Brief Supports Recopyright Law Against First Amendment Challenge"

ABAJournal.com: "Supreme Court to Consider First Amendment Rights of Conductors in Recopyright Case"

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