The Supreme Court certified two questions in Golan v. Holder: (1) Does section 514 of the Uruguay Round Agreements Act (“URAA”) violate the Progress Clause of the Constitution? (2) Does the URAA violate the First Amendment? This Essay argues that section 514 violates the Progress Clause’s requirement that copyright laws “promote the Progress of Science.” This is because the statute bequeaths copyright status without in return achieving any net increase in the creation or dissemination of creative works. Even if the Government relies on other constitutional authorities to justify section 514—such as the Commerce Clause or the Treaty Power—the limitations of the Progress Clause still must apply. Since First Amendment analysis turns, in part, on whether the speech restriction in question violates any constitutional limitations on the federal power under which the law is passed, this Essay argues that the URAA must fail. Any law that violates constitutional restrictions on federal power cannot, by definition, serve a legitimate government interest.
Available at: http://works.bepress.com/david_olson/2/