Golan v. Ashcroft Case Page
The CIS filed this suit on behalf of a University of Denver,
Colorado conductor and others, seeking to have the CTEA and the Uruguay
Round Agreements Act declared unconstitutional. The suit challenges
Congress’s ability to reclassify works that have already passed into
the public domain as copyrighted, thereby giving ownership back to
Last week, the District Court ruled
on the parties’ pending cross motions for summary judgment. The Court
denied Plaintiff’s motion for partial summary judgment, and granted the
government’s summary judgment motion on all claims. This means the case
is over at the trial court level. Although Plaintiffs had collected and
produced much evidence of the harms associated with the enactment of
the URAA, the Court was unpersuaded that the factual issues should
preclude summary judgment or enter its analysis of the parties’ claims.
We expect to appeal the order to the Tenth Circuit Court of Appeals.
Joint pretrial order & pretrial conference
At the end of March, the parties jointly filed a Pretrial Order
in preparation for trial in June. A pretrial conference was held before
Magistrate Judge Boland on April 11. Our new lead trial attorney, Ted Herhold of the law firm Townsend & Townsend, appeared on behalf of Plaintiffs.
Plaintiff’s summary judgment motion
In February, Plaintiffs filed a replybriefs.
Government’s reply brief on summary judgment
The Government’s reply brief in support of summary judgment was filed on Nov. 24, 2004. No hearing date is presently scheduled for this motion.
Chief Judge Babcock affirms rulings by Magistrate Judge Boland
Chief Judge Babcock today affirmed Magistrate Judge Boland’s ruling
in August in which he granted in part Plaintiff’s 56(f) motion and
denied the government’s motion for a protective order to stay
discovery. The order is short and to the point.
This brings to close a rather lengthy series of motions from the
summer months. Currently, we are awaiting the government’s reply on its
summary judgment motion, and we are working to complete discovery.
Opposition to summary judgment motion filed
We filed a brief and several declarations in opposition to the government’s motion for summary judgment on November 4.
We had a great team of lawyers, law students and experts who helped
put the Plaintiffs’ opposition brief and supporting declarations
together. Thanks to all for their great work.
Here is exhibits B-E.
Government files answer
The government filed its Answer to the Second Amended Complaint on October 12.
Litigation via the web
The October 2004 issue of Law Office Computing magazine published Golan v. Ashcroft website.
We are using this website to collect information and obtain more
stories from the public to support the case. Go to the link and tell us
The government wasn’t happy about Judge Boland’s decision allowing
discovery and permitting Plaintiffs to develop evidence to contradict
summary judgment. In fact, as noted before, it appealed Judge Boland’s
ruling to Chief Judge Babcock. Today, we filed Plaintiff’s brief opposing
the government’s objection. We argue that Judge Boland’s decision is
consistent with precedent, and reflects the sound discretion of
district courts in determining discovery issues. The Order should not
be disturbed absent “clear error.” As Judge Kane (also D. Colo.) has
succinctly put it: a magistrate’s ruling should stand unless it
“strike[s] me as wrong with the force of a five-week-old,
unrefrigerated dead fish.” We hope Judge Babcock agrees that there is
no “dead fish” here.
Chief Judge Babcock issued an Second Amended Complaint has been accepted for filing.
Government Objects To Judge Boland’s Opinion
The government has filed an objection
to the decision of Magistrate Judge Boland ordering discovery to go
forward in the case. We will oppose the government’s objection.
Reply on Motion to Amend
We filed our reply brief on the Motion to Amend last Friday.
At yesterday’s hour-long hearing on Plaintiffs Rule 56(f) motion for
discovery and the government’s motion for a protective order to stay
discovery, the Court agreed with Plaintiffs’ position on both motions.
Motion for Discovery
Judge Boland ruled
that facts precluding summary judgment could not be presented by
Plaintiffs without discovery, and that additional time would permit
Plaintiffs to develop those facts. The Court ordered discovery to
proceed on all issues in the case.
This ruling is a victory for Plaintiffs as we will now have the
opportunity to develop the factual information challenging the
government’s allegation that a 200-year “tradition” or “practice”
exists in this country of “restoring” copryight in works that had
entered the public domain. We believe the evidence will convincingly
contradict the government’s argument and the Court will in turn deny
the government’s summary judgment motion. Moreover, factual evidence
supporting Plaintiffs’ first amendment and due process clause claims is
also subject to full discovery. We believe evidence showing the
substantial and unnecessary burdens on speech and the unconstitutional
retroactive effect of the URAA will convince the Court to reject the
Importantly, Judge Boland’s ruling acknowledges two things. First, it acknowledges that events in history are, indeed, facts
that can be controverted and, if controverted, may (and, we believe,
will) preclude summary judgment. The government’s attempt to cast this
analysis merely as an analysis of legislative history (e.g., the
congressional record) was rejected. Second, the ruling acknowledges
that, on summary judgment, the Court must consider facts that undercut
the purported histororical “tradition” that the government presents.
While the Court set no limits on the scope of discovery going
forward, it did order that Plaintiff’s oppose the summary judgment
motion within 75 days (in other words, by November 1, 2004). Our work
is certainly cut out for the next few months!
Motion for Stay of Discovery
Given the Court’s decision on the 56(f) Motion, it is not surprising
that Judge Boland also agreed with Plaintiffs’ argument for denying the
government’s motion for a protective order to stay all discovery.
Noting that this case is already an “old case” (it was filed in 2001
but stayed during the Eldred appeal
to the Supreme Court) and that a trial is set for June 2005, Judge
Boland wisely chose not to risk delaying the trial by staying all
discovery. Here, the Court found that there is no “extraordinary” need
for the broad relief sought by the government. Judge Boland further
ordered that the government respond to the outstanding interrogatories
and document requests within 30 days (i.e. by September 16, 2004).
Despite the government’s numerous attempts to stonewall discovery, it
has now been ordered to proceed.
Lastly, and certainly not least, acknowledgements are due for the
great work of everyone on our legal team in obtaining this victory. We
could not have reached this result without the dedication and teamwork
of Elizabeth Rader,
our non-resident CIS fellow, who actively managed this case prior to my
recent arrival to CIS and whose continued involvement is greatly
appreciated. Thanks all for your counsel, research, and articulate
Motions, motions and more motions…
We have three pending motions before the Court at this time.
First up, is Plaintiffs’ Rule 56(f) Motion for discovery (see July 26 entry for links). Today, we filed our reply brief so this one is all qued up for the hearing on August 17 before Magistrate Judge Boyd N. Boland.
Second, we have received the government’s Motion for Protective Order Staying Discovery
which was filed on Friday, August 6. The Court ordered an expedited
briefing and hearing schedule so that this motion will also be heard on
August 17 by Judge Boland. It makes sense to hear these motions
together, as they both relate to what discovery Plaintiffs will be
entitled to and whether the Government’s stonewalling tactics will be
permitted to proceed. We will file our opposition brief on Monday,
Finally, we have a pending Motion to Amend the complaint (see Aug. 3rd entry for links), to which the Government’s opposition was recieved today. A hearing date has not been set for this motion.
Govt’s opposition received
We received the Government’s opposition brief to our Rule 56(f) motion today.
Plaintiffs Move For Leave To Amend Complaint
On July 20, we filed a Motion to Amend
the complaint to add the Register of Copyrights as a defendant, clarify
relief sought, and conform the complaint to the Court’s March 2004 order
dismissing the CTEA claim (based on Eldred). The Government’s
opposition, if any, is due on August 10. A copy of the Second Amended
Complaint which we have asked for leave to file is here.
Plaintiffs Move for Discovery
In response to the Government’s summary judgment motion, we filed a affidavit
seeking discovery. As our motion states, the Government’s summary
judgment motion is premature. The Court has already set a discovery
schedule, we have served discovery which is due in August, and
discovery is necessary for the Court to properly decide any summary
judgment motion. A hearing is set for August 17 in Denver, Colorado, before the Hon. Boyd N. Boland.
Government Moves For Summary Judgment
Today the Government filed a Motion
for Summary Judgment. (sorry about formatting glitches in the PDF- this
is how the Govt. sent it to us in a courtesy e-mail). The Government
argues that the Court can decide the case as a matter of law, without
the need to hear any testimony or decide any issues of fact. The motion
urges the District of Colorado Court to follow the June 10th decision
of the Federal District Court for the District of Columbia in Luck’s Music Library v. Ashcroft”>
Tell Us Your Story or Just Learn More
Thanks to the excellent work of lawyers at Wheeler, Trigg & Kennedy,
we’ve now convinced the court of the importance of discovery to
demonstrate the actual harms caused by “restored” copyrights. The task
before us now is to gather and develop facts about how people used the
works affected by copyright restoration before Congress passed the URAA
and how they are harmed by the inability to use these works now. To
help us collect these stories, we’ve launched a wiki-style tool. Check
out this Aaron Swartz and please share your story and spread the word to others so they can share theirs.
Case Management Conference Set
We’ve received an Order from the District Court setting a case management conference for May 19, 2004.
Government Answers Amended Complaint
On April 1, 2004, Defendant John Ashcroft, in his official
capacity as Attorney General, responded to the Plaintiffs’ First
Amended Complaint in Golan v. Ashcroft. As you recall, the Court denied the AG’s motion to dismiss as to three counts, granting it as to one. Here is the Answer .
In an Answer, the defendant merely admits or denies the allegations in
the Complaint, paragraph by paragraph, so this isn’t very interesting
reading unless you have the Amended Complaint in front of you. The
government denies having information about all the harms plaintiffs
have alleged, and denies that the statute challenged violates the
Constitution. Now the case moves into the discovery phase.
Case Survives Motion to Dismiss!
CIS represents the plaintiffs, including a music conductor in Golan v. Ashcroft,
a case challenging Congress’s “restoration” of copyrights to works that
have passed into the public domain. The government moved to dismiss Golan on the basis of the Supreme Court’s ruling in (opinion)
rejected the government’s motion, and, while striking an Eldred-related
claim, refused to dismiss the other 3 counts of the complaint.
Back by popular demand, here is the First Amended Complaint
that is the subject of the pending Motion to Dismiss.
No News is No News
This case is waiting for the Judge to rule on the Government’s
Motion to Dismiss the First Amended Complaint. The motion was fully
briefed as of mid-June, 2003 so apparently the Court is taking its time
to read, understand and evaluate both side’s arguments. When we get a
ruling, we will update the site.
Government Files Reply In Support of Its Motion To Dismiss
The Government has replied to Golan’s opposition to its Motion To Dismiss the First Amended Complaint.
Download file This motion is now full briefed and ready to be decided unless the Court wants to hear oral argument.
Plaintiffs’ Opposition To Motion To Dismiss
On May 20, 2003, CIS filed its brief opposing the government’s Renewed Motion to Dismiss.
Government Moves To Dismiss Amended Complaint
Today, April 30, 2003, Attorney General Ashcroft moved to dismiss Plaintiffs’ First Amended Complaint.
In addition to arguments made previously in a motion to dismiss the
original Complaint, the Government relies heavily on the Supreme Court
decision in Eldred v. Ashcroft,
arguing that the Supreme Court has confirmed that the Congress has
extraordinary power to choose how to accomodate the objectives of the
copyright clause. Plaintiffs contend that Eldred does not foreclose their new argument that the CTEA term is effectively perpetual. Eldred
also says nothing that would support Congress’s decision, in the URAA,
to restore copyrights on works that were already in the public domain.
The District Court has granted plaintiffs’ Motion to File First Amended Complaint in Golan v. Ashcroft.
The Amended Complaint pleads a new theory for the Copyright Term
Extension Act being unconstitutional- that the new term is effectively
perpetual and therefore violates “limited times.” The Amended Complaint
also still challenges the restoration of copyrights to numerous foreign
works that had been in the public domain prior to the enactment of the
Uruguay Round Agreements Act.
The Government has stated its intention to respond by filing a new Motion to Dismiss.
CIS Moves To File Amended Complaint
This case had been on “administrative retirement” pending the Supreme Court’s decision in Eldred v. Ashcroft. Eldred was decided in January and in February, CIS filed a Motion To File First Amended Complaint.
The proposed First Amended Complaint replaces the arguments why the
Copyright Term Extension Act is unconstitutional with a new argument
based on Justice Breyer’s dissent in Eldred, that the new term is effectively perpetual.
Openlaw, Robert Crown Library Resources
Also see the Openlaw: Golan v. Ashcroft
for more information on the case.
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