January 18, 2012, could prove to be an incredibly important day, and not just for copyright policy or the Internet. On that day, two critically important things happened. First, with its 6-2 decision in Golan v. Holder, the Supreme Court shut the door, finally and firmly, on any opportunity to meaningfully challenge a copyright statute constitutionally. Second, millions from the Internet opened the door, powerfully if briefly, on the powers that dominate policymaking in Washington, and effectively stopped Hollywood’s latest outrage to address “piracy”—a k a the Stop Online Piracy Act (SOPA), and the Protect IP Act (PIPA).
The constitutional battle began over a decade ago. Conservatives on the Supreme Court had long rumbled about the need to respect the “original intent” of the “framers” of our Constitution by enforcing the affirmative limits of the Constitution. In 1995, a 5-4 Court decision shocked conventional wisdom by striking a law regulating commerce because, as the Court found, it exceeded those original limits. Three years later, the Court did the same, this time with a law regulating violence against women. The Court seemed eager to read the Constitution the way the framers wrote it, regardless of how the current Congress read it.
So beginning in 1999, copyright activists started to ask the Court to apply the same reasoning to copyright law. (Disclosure: I was one of those activists). In a challenge to the Sonny Bono Copyright Term Extension Act—a statute that extended the terms of existing copyrights by twenty years—the plaintiffs argued that the authors of the Copyright Clause, which expressly limited Congress’s power to grant copyright terms for “limited times” only, would never have sanctioned Congress’s current practice of extending terms again and again. The framers gave us a copyright term of fourteen years, renewable once. The current Hollywood-financed Congress has given us the term of life of the author plus seventy years.
The Court disagreed with activists, though the conservatives never explained why. The opinion in Eldred v. Ashcroft, however, contained an intriguing suggestion: While the Court refused to apply the method that had struck down the laws regulating commerce, it hinted that laws that violated the “traditional contours of copyright” might be subject to a more penetrating review.
That was the predicate for Golan v. Holder, the case decided on January 18. In the 1990s, Congress began a practice of “restoring” copyright to works in the public domain. In Golan v. Holder the plaintiffs challenged that restoration as outside the “traditional contours of copyright protection.” The 10th Circuit agreed and held that such statutes had to be tested under the First Amendment. The Supreme Court, however, reversed that finding, crafting an opinion that all but guarantees Congress a constitutional “free ride” within the copyright field. Only two justices dissented—Justice Breyer, who had dissented in Eldred, and Justice Alito, to his credit as a conservative originalist. The rest were happy to signal to the copyright bar: Constitution time is over. Pay no attention to that puzzling clause at the core of the Constitution’s enumerated powers. The hint that it would be as vigorously defended as other clauses was now officially rejected. We had tried. And we had lost.