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Big day for interesting judicial opinions:
Golan v. Holder, (D. Colo. Apr. 3, 2009).

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Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation’s own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs’ vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech. Accordingly—to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain—Section 514 is substantially broader than necessary to achieve the Government’s interest.

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Rescuecom Corp. v. Google Inc., (2d Cir. Apr. 3, 2009) (vacating and remanding district court’s decision and finding instead that “The Complaint’s allegations that Google’s recommendation and sale of Rescuecom’s mark to Google’s advertisers, so as to trigger the appearance of their advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of Rescuecom’s trademark, properly alleges a claim under the Lanham Act.”).

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The remarkable thing about the Rescuecom opinion is the 19-page dicta “Appendix” that concludes, “It would be helpful for Congress to study and clear up this ambiguity.”

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