“The Devil Take the Hindmost”: Copyright’s Freedom from Constitutional Constraints after Golan v. Holder

In Golan v. Holder, the Supreme Court upheld section 514 of the Uruguay Round Agreements Act against constitutional challenges under both the Copyright Clause and the First Amendment. Golan is the most recent (and the most drastic) example in a line of copyright decisions that display an alarming trend in the Court’s jurisprudence—a willingness to prolong copyright protection with no ostensible regard for the goals of or constraints imposed by the Copyright Clause. Although Golan raised a number of complicated issues—including both the need for harmonization between the domestic laws of the United States and its international legal obligations, and the inherent tension between the First Amendment and the Copyright Clause—the Court made no real attempt to address them. Instead, the Court gave Congress virtual carte blanche to dispense copyright grants, even when doing so plunders millions of works from the public domain. The result not only places at risk the livelihood of thousands of artists and educators, but might also threaten the very existence of the American public domain.

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