Supreme Court hears important public domain case: Can Congress remove works from the public domain?

More news out of the Supreme Court: today it considered a case in which copyright reformers want to remove thousands of works by foreign authors from the public domain in order to “harmonize” US copyright law with international copyright standards.

Ars Technica claims the case rose from the ashes of Eldred v. Ashcroft, in which the court ruled that Congress was entitled to extend copyright because "when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." So copyright reformers looked for cases where Congress had changed those contours and came up with the 1995 Uruguay Round Agreements Act, which restored copyright to foreign works that had previously passed out of copyright in the US due to failure to meet formalities (registration, renewal, etc.) or lack of treaty between the US and the country of origin of the work.

However, a little further research shows the case, Golan vs. Holder, was originally filed in 2001, two years before the Ashcroft decision. (So long ago, in fact, that it’s changed defendants twice due to different people being appointed to the Attorney General’s office.) So while the copyright reformers might have had new ammunition after 2003, I don’t think the case can be seen as a reaction to that defeat. (We previously mentioned this case here and here, and probably elsewhere too.)

Regardless, the case has taken ten years to work its way up to SCOTUS, but it finally arrived, and the court has been giving it due consideration. Solicitor general Donald Verrilli, representing the Obama administration, claimed the law was necessary to gain reciprocal protections for American copyrights in foreign countries. Anthony Falzone, arguing for the plaintiffs, pointed out "If the government can get around First Amendment limits by signing a treaty, then the First Amendment is defined only by the perceptions, the complaints, and frankly the imagination of foreign countries, That can’t be the way it works."

Some justices displayed skepticism toward the plaintiff’s arguments, others toward the defendant’s. But given that Eldred was a 7-2 decision, and one of the dissenting justices retired last year, pessimism seems to be in order.

The whole thing confuses me a little, I’ll admit, as one of the precepts I keep reading every time I read about the public domain is that, by its very nature, once a work has entered the public domain, it’s there for good—it can’t just be plucked right back out again. But in this case, Congress seems to have done just that, and the court might let them. It doesn’t make much sense to me