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The D.C. Circuit today released its opinion in Luck’s Music Library v. Gonzales, holding that the Uruguay Round Agreements Act, which granted new copyrights to foreign works which were in the public domain due (primarily) to failure to adhere to notice, registration, and deposit requirements, is constitutional.

The plaintiffs’ argument was twofold. First, that the Constitution, by directing Congress to provide incentives for creation of works, forbade the enactment of copyright laws that fail to provide such incentive, and that the law at issue here, by granting rights only to works that have already been created, violates that limitation. Second, they argued that both historical practice and Supreme Court precedents indicated that once a work enters the public domain, that status cannot be changed.

The D.C. Circuit rejected both of these arguments. The court found just a sliver of incentive for the creation of new works, in observing that since copyright protections tend to grow and grow, an author, for example, writing in Peru in 1932 might have decided to create a work because he knew that some day the United States might retroactively grant it copyright protection. This, said the court, is enough; Eldred requires only the barest hint of an incentive, and while the incentive here is minimal, it nonetheless, argues the court, exists.

The court rejected the historical and precedential arguments almost without considering their merits. The plaintiffs argued that never before had retroactive copyright protection been extended; the government argued that it had. Without careful analysis of the difference between previous laws and the URAA, the court concluded at least that the historical record was indecisive. And plaintiffs’ most direct argument — that Graham v. John Deere clearly states that “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available” — was rejected as an irrelevant dictum. The court simply stated, rather unsatisfyingly, that copyright and patent doctrines were not always the same, and that this was one case where they were different.

I wish the plaintiffs good luck before the Supreme Court. One wonders how different this opinion might have looked if the Golan case, which was filed around the same time as Eldred, had gone up on appeal first.

(Full disclosure: I worked on Golan, a challenge to the same law, while I was at the Stanford CIS; because of that work, I have corresponded with counsel to Luck’s Music and assisted once or twice with their research.)