As prominent websites blacked out to protest SOPA on January 18, the Supreme Court of the United States delivered a landmark ruling to corporate copyright owners. As media attention remained focused on the Stop Online Piracy Act and Protect IP Act, the Court handed down its opinion in Golan v. Holder.
This timing was, ironically, advantageous for the entertainment industry. While open access advocates such as website Boing Boing passionately condemn SOPA/PIPA, little attention was paid to the ruling in Golan. Boing Boing, for example, had several posts on Golan as it headed to oral argument, but none in the wake of its ruling. Similarly, Lawrence Lessig's twitter feed lit up against SOPA in December and January, but did not address the 6-2 court ruling. The same goes for UPenn Cinema Studies professor Peter Decherney, who had written an amicus brief in the case and a New York Times op-ed on Golan in October, but has not spoken out prominently about the case's outcome.
Unlike legislation that has drastically enhanced copyright protection (i.e. the Sonny Bono Copyright Extension Act, or the Digital Millennium Copyright Act), Golan has limited scope. It pertains only to older works whose copyright status remain murky due to age and gaps in international law. As the Conductors Guild famously argued in its amicus brief, an unfavorable ruling would mean that "student ensemble[s] no longer can perform Prokofiev’s [1936 composition] Peter and the Wolf or Stravinsky’s [1918 composition] Soldier’s Tale, among other titles." While technically the ruling has limited implications, it enforces a trend toward unreasonable copyright extension and has educational implications beyond those of youth music ensembles.
Anyone interested in studying history should be concerned about this ruling. Golan further restricts the amount of modern media that may be consumed, and studied, free of charge. Imagine if we could view a vast library of early Twentieth-Century film online, without ads. The educational value would be immense. Sites like the Internet Archive and Wikimedia Commons, which currently house invaluable resources to historical researchers, are now threatened because they provide unlicensed versions of retroactively copyrighted content. Unfortunately, the majority of the Supreme Court believes that corporations and the estates of long-deceased artists are more important than scholars who might use these types of resources.
The Golan ruling and SOPA represent a double threat to web-savvy historians and internet archives. If SOPA were to pass, a site containing unlicensed, retroactively copyrighted content could be taken offline immediately without any due process. The federal government itself might have to shut down its own websites. This could conceivably happen if Time complained that the Smithsonian history blog Past Imperfect used items from their photo archive without permission, or if a major film studio that produced a video for the government found out that clips made their way into the National Archives Archival Research Catalog.
A ruling in favor of copyright holders does not mean that open access advocates should be resigned to failure. The Court's right wing often defers (rhetorically, at least) to the authority of Congress. Should our legislators actually follow the spirit of our Constitution - which offered copyright protection for "limited times," not lifetimes - they may reverse the trend towards copyright extension and begin to limit the unreasonable amount of time that copyrighted material is locked away for the benefit of corporations.
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(Note: while the actual opinion should be available at the Supreme Court website here (.pdf), it is currently unavailable - perhaps, if I might speculate, because of hacker interference?)
