In the Trenches with § 104A: An Evaluation of the Parties’ Arguments in Golan v. Holder as It Heads to the Supreme Court
Golan v. Holder raises a number of important problems about copyright, the First Amendment, and international law. What is missing from the debate, however, is an actual analysis of 17 U.S.C. § 104A, the statute that removes works from the public domain. This Essay assesses the Government’s position and argues that § 104A accomplished neither our treaty obligations nor the objective of righting past wrongs done to foreign authors. It also argues that the goal of protecting American works abroad could have been addressed more efficiently by other means. § 104A violates the traditional contours of copyright in a mechanical (rather than an historical or functional) way and makes determining the copyright status of foreign works a near-impossible task. The statutory machinery of Congress has been enlisted for seemingly very little gain.