some of whose works have been recaptured into copyright
in the U.S. under Section 514.
A substantial portion of the dissent's argument arises from the basic premise that Section 514 does nothing to further the cause of promoting new works. But it also highlights the substantial administrative costs to those who previously used or wished to use the works in questions. (The named plaintiff in the case, Lawrence Golan, discussed these costs in an interview prior to the Court's decision). On the most obvious level, which works which used to be free are no longer free. But other costs exist - the works in question are foreign works created between 1923 and 1989, and many of them are “orphan works” whose owners can not be found, or at least not without great expense and difficulty. Moreover, because the recaptured works are limited to specific categories created by copyright statutes which are not easily known or understood by the average user (and even if they were known, could be difficult or impossible to apply to any particular work), the status of many works is now unknown, effectively removing them from public use altogether. The dissent is forced to admit that copyright necessarily imposes costs on the public, but points to the “special harm” imposed because of the “foreign location of restored works” and “technical requirements . . .to establish where a work has had its copyright restored by the statute.” (Dissent Slip Op. at 14). These harms, according to the dissent, require the Court to “scrutinize with some care” (presumably referring to the intermediate scrutiny standard applied to cases that restrict free speech, but on a content-neutral basis). The majority, of course, held that works in the public domain are not in a “category of constitutional significance,” and that First Amendment free speech concerns are not in play. Furthermore, the majority came far closer to telling Congress it will bury its head in the sand when it comes to that body’s legislation on copyright issues, than to giving it any kind of constitutional scrutiny.