Although legal academics primarily write and teach about the law, they sometimes also serve as the driving force behind litigation. Golan v. Holder,Â scheduled for argument on October 5, is just such a case. (Disclaimer:Â Goldstein & Russell, P.C., the sponsor of this blog, serves as counsel to petitioners in this case, but the author of this post is not affiliated with the law firm.)
The plaintiffs in Golan challenge a federal law that restored copyright protection for foreign works that had fallen into the public domain, including Shostakovichâ€™s Symphony 14, Cello Concerto, Stravinskyâ€™s Petrushka, Prokofievâ€™s Peter and the Wolf, and Hitchcockâ€™s 1932 film â€œNumber 17,â€ along withÂ millions of others. The federal statute was itself a consequence of the United Statesâ€™s decision to join the Berne Convention on Literary Property, which requires signatories to give copyright protection to foreign works if the country of origin still protects those works, even if they were already a part of the public domain in the United States.
The plaintiffs (now petitioners) argue that the First Amendmentâ€™s free speech guarantee bars Congress from restoring copyright protection for works that were in the public domain, and thus had become available for publication, performance, and copying without limitation until the federal statute snatched them back. Although the Courtâ€™s 2003 decision in Eldred v. Ashcroft held that Congress hasÂ the authority to extend copyright protection under the Copyright Clause of the Constitution, the petitioners argue that Eldred does not give Congress the authority to re-impose copyright protections after a work has entered the public domain.Â Â Â (A thorough preview of the case can be found here.)
The case has garnered considerable academic attention. Articles by Professors Elizabeth Townsend Gard and David Olson focus specifically on the Golan case. Chicago-Kent Law School has devoted a forthcoming symposium toÂ this Term’sÂ IP cases, including the Golan case.Â (Chicago-Kent Professor Edward Lee was formerly counsel for the plaintiffs.)Â Professor Julie Cohen has posted on ssrn a book chapter about the tension between commodification and public domain more generally.
Academics arenâ€™t just writing about this case, however; they are also litigating it. As described here, the plaintiffs include professors who were restricted from teaching these now-copyrighted works to their students. The case was brought by Stanford Law Schoolâ€™s Center for Internet and Society, now working together with the Stanford Law School Supreme Court Litigation Clinic. Beating considerable odds, these litigators convinced the Court to take the case over the Solicitor Generalâ€™s opposition. A flurry of amicus briefs have been authored by, or filed on behalf of, law professors.
So for those of you who aren’t thrilled by legal scholarship (a topic I addressed in my last post), it’s worth noting that law professors and law schools also devote their time to litigating cases.Â Though of course they are sometimes criticized for that as well.