The scholar is Lawrence Golan, a music professor and conductor at the University of Denver. He argued that the U.S. Congress did not have the legal authority to remove works from the public domain. It did so in 1994, when the Congress changed U.S. copyright law to conform with an international copyright agreement. The new law reapplied copyright to millions of works that had long been free for anyone to use without permission.It's really Congress's fault, but the Court might have saved us from this unpleasant legislative imposition. There were 2 dissenters, 2 of my favorite Supreme Court Justices, Stephen Breyer and Samuel Alito — one liberal and one conservative, which makes 2 seem like more than 2.
"Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," declared the majority opinion, which was written by Justice Ruth Bader Ginsburg.The case is Golan v. Holder. Here's the full text.
In a dissenting opinion, Justice Stephen G. Breyer, writing for himself and Justice Samuel A. Alito, faulted the Congressional action. "The fact that, by withdrawing material from the public domain, the statute inhibits an important pre-existing flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute," he wrote.