[Foundation-l] Amicus Brief Filed in Golan v. Holder: Fighting for the Public Domain

Geoff Brigham gbrigham at wikimedia.org
Wed Jun 22 18:40:31 UTC 2011

Yesterday, the Electronic Frontier Foundation (EFF) filed an amicus
("friends of the court") brief in Golan v. Holder, a case of great
importance before the Supreme Court that will affect our understanding of
the public domain for years to come.  See
http://en.wikipedia.org/wiki/Golan_v._Holder.  The EFF is representing the
Wikimedia Foundation in addition to the American Association of Libraries,
the Association of College and Research Libraries, the Association of
Research Libraries, the University of Michigan Dean of Libraries, and the
Internet Archive.

This case raises critical issues as to whether Congress may withdraw works
from the public domain and throw them back under a copyright regime.  In
1994, in response to the U.S. joining of the Berne Convention, Congress
granted copyright protection to a large body of foreign works that the
Copyright Act had previously placed in the public domain.  Affected cultural
goods probably number in the millions, including, for example, Metropolis
(1927), The Third Man (1949), Prokofiev's Peter in the Wolf, music by
Stravinsky, paintings by Picasso, drawings by M.C. Escher, films by Fellini,
Hitchcock, and Renoir, and writings by George Orwell, Virginia Woolf, and
J.R.R. Tolkien.

The petitioners are orchestra conductors, educators, performers, film
archivists, and motion picture distributors who depend upon the public
domain for their livelihood.  They filed suit in 2001, pointing out that
Congress exceeded its power under the Copyright Clause and the First
Amendment of the U.S. Constitution.  They eventually won at the district
court level, but that decision was overturned on appeal in the Tenth
Circuit.   The U.S. Supreme Court - which rarely grants review - did so

Petitioners filed their brief last week, and you can find it here:
http://cyberlaw.stanford.edu/node/6684.  We are expecting a number of
parties to file "friends of the court" briefs.   The EFF's brief can be
found here:  http://www.eff.org/cases/golan-v-holder .

The Wikimedia Foundation joined the EFF brief in light of the tremendously
important role that the public domain plays in our mission to "collect and
develop educational content under a free license or in the public domain,
and to disseminate it effectively and globally."  We host millions of works
in the public domain and are dependent on thousands of volunteers to search
out and archive these works.  Wikimedia Commons alone boasts approximately 3
million items in these cultural commons.  To put it bluntly, Congress cannot
be permitted the power to remove such works from the public domain whenever
it finds it suitable to do so.  It is not right - legally or morally.   The
Copyright Clause expressly requires limits on copyright terms.  The First
Amendment disallows theft from the creative commons.  Such works belong to
our global knowledge.  For this reason, we join with the EFF and many others
to encourage the Court to overturn a law that so threatens our public domain
- not only with respect to the particular works at issue but also with
respect to the bad precedent such a law would set for the future.

We anticipate the Court will reach a decision sometime before July 2012.

Geoff Brigham
General Counsel
Wikimedia Foundation

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