Top Tens in 2011: Copyright and Trade Secret Cases

I. COPYRIGHT ¶1 The biggest development in 2011 may have been the Supreme Court granting certiorari in Golan v. Holder.1 The Court addressed the constitutionality of the 1994 statute that restored copyright protection (and so took works out of the public domain) to foreign authors who had lost their United States copyright due to failure to meet formality requirements or due to lack of copyright relations between their country and the United States2 (for example, in the Soviet Union, for authors such as Prokoviev).3 In early 2012, the Court held the restoration provisions constitutional, reasoning that the legislation was within Congress’s broad powers to grant copyrights and that First Amendment scrutiny of copyright statutes is unnecessary as long as the statutes contain two “built-in ” First Amendment safeguards, fair use and the non-protection of ideas.4 1. Authors Guild v. Google Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011) ¶2 Judicial concern for orphan works barred a proposed settlement of the Google Books litigation. There is considerable uncertainty about the application of copyright t