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Court Takes Away Some of the Public Domain
An anonymous reader writes "In yet another bad ruling concerning copyright, a federal appeals court has overturned a lower court ruling, and said that it's okay for Congress retroactively to remove works from the public domain, even if publishers are already making use of those public-domain works. The lower court had said this was a First Amendment violation, but the appeals court said that if Congress felt taking away from the public domain was in its best interests, then there was no First Amendment violation at all. The ruling effectively says that Congress can violate the First Amendment, so long as it feels it has heard from enough people (in this case, RIAA and MPAA execs) to convince it that it needs to do what it has done." TechDirt notes that the case will almost certainly be appealed.
The RIAA are not 'people'
Copyright is, at it's core, the government-enforced ability for a private entity to say "you're not allowed to say that, because I said it first". This is by definition an impingement on free speech.
Free speech != original speech.
Democracy? Too much hassle. Oligarchy is much easier.
When government "reserves the right" to oppress your rights, then by common sense, your rights never existed in the first place.
Trust Congress to do what's right? People change and the makeup of congress changes. This would mean the decision to take something from public domain is up to an ever-changing group of people. This would not lead to a consistent way to decide what gets to become public domain and what doesn't--aside from the fact that the decision would be consistently be made in favor of the side with the most to offer (ie: money).
If the Public Domain erodes, so too does our cultural identity. Sounds hyperbolic, but it is true. How far back do you want to go? Shall we just end the PD as a possibility, and all things are owned for all time? Who does that benefit, outside those whose items would be escheated to?
Disney just lost the rights to winnie the pooh?
This is absolutely the correct conclusion to the Golan case. As someone who wrote a 20 page term paper on this case for an International Intellectual Property class in law school, I understand the OP's concern, but this decision will have far narrower application than imagined. It is absolutely ESSENTIAL if we are going to meet our obligations under TRIPs in order to avoid WTO sanctions, and it will apply only to a small subset of authors who utilized a small subset of works that fell into the public domain because the US /wasn't/ following its treaty obligations for a number of years.
Important decision this is, but the sky ain't falling yet.
The only reason the Oligarchy exists is because your average american citizen cannot name their congresspeople.
I was under the impression that it was the government's job to protect our rights. I guess the joke is on me.
While I think removing works from the Public Domain was a bad idea, I'm a little fuzzy as to what on earth that has to do with the 1st amendment. I can understand why removing say, the law or official publications from the public domain would be bad and stifle free speech, but I'm not sure how removing private works from public domain would rise to the level of a constitutional violation.
I'm not trying to be combative here... I genuinely want to know!
I don't get it. can someone decode the double negatives?
For anyone here who promotes the expansion of copyright law I ask a question:
What if Shakespeare was still in copyright? Or Beethoven, or Bach or Chaucer or Gilbert and Sullivan.
Would society be better if such intellectual legacies were allowed? Without a constant updated public domain isn't society suffering?
"The weirdest thing about a mind, is that every answer that you find, is the basis of a brand new cliche" -
I don't like the ruling, but it's probably correct. Congress has the Constitutional authority to institute copyright laws and there is no particular legal reason to presume that once something is in the public domain, it can never be returned to being copyrighted. Not liking it is not a legal reason.
However, after skimming over the decision I see no mention of the issue of this being an ex post facto law w.r.t. using things that were in the public domain, but suddenly weren't. I believe that under a reasonable interpretation of that clause you can not touch those people, and it is not Constitutional to ask them to pony up any money, "reasonable" amounts or otherwise. Liabilities should only be incurred based on the copyrighted status of the used works at the time of use, not at the whim of any future Congressional acts. Unlike "not liking retroactive extension", this point is actually a Constitution-based argument.
For those unfamiliar with Golan v. Gonzales, it's worth noting that JRR Tolkien's works and several novels by HG Wells are covered by this case.
They all want to argue the First Amendment, like it's some Holy Scripture and they get bonus karma for it in a future life.
Taking things out of the public domain that were already there is the opposite of progressing Science and (the) useful Arts. That's the pertinent Constitutional issue, not some bullshit Amendment-of-last-resort argument.
If you were blocking sigs, you wouldn't have to read this.
Who does that benefit, outside those whose items would be escheated to?
The business of government. An insanely complex, ambiguous, and exploitable system of law rakes more cash through the business of government than one which is simple and based on common sense. We're talking hundreds of billions of dollars per year more. Think about it: the courts are infinitely tied up with business. That costs money, and a lot of it. It doesn't matter where the money needed to run this enormous scam comes from. What matters is that it passes through the hands of the elite at the top of the pyramid, where they can exploit it for personal gain.
I like that story. I think I'll own it.
Seriously - this is about as far as you can get from "to promote the Progress of Science and useful Arts" as you can get, taking from the public domain and making a private monopoly.
Perhaps the argument would be that classically nobles and aristocrats funded science, so by funneling more monopolies and money engines to the super-elite, you might get more 'trickle down' arts and sciences. However, looking to corporations, the trend is for less actual science to get done, as it is increasingly seen as a pure cost rather than a benefit, despite protections available. In modern centuries, it is the public sector that has funded science for the most part, and the private sector "art" has been mostly marketing and mass produced goods.
Ryan Fenton
What does this mean?
If something goes into public domain, I republish it. (clean up the spelling and reformat it) who now has rights?
They are idiots
Why bother following any laws anymore? So many unjust laws on the books it almost undermines the validity of any sane laws that are left.
As a potential lottery winner, I totally support tax cuts for the wealthy
Disney has already been doing this much more effectively for years. You would think that Mickey Mouse would be public domain, but every time he gets close to the public, there is a nice bill through congress that extends the expiration date. You can look at Wikipedia for more on the "Mickey Mouse Protection Act", but it's hardly a surprise that corporations are attempting to circumvent limitations to IP ownership.
What worries me the most is that, if Mickey can get his rat ass protected, what will Congress see fit to remove from the Public Domain, and just how much of a campaign donation does it take to do it?
Based on the reader's own comments earlier, didn't the ruling effectively say that it's not a violation of the First Amendment?
You can disagree with that decision, but don't mischaracterize what the court's ruling says, especially if that's going to contradict your own account.
that patents and copyrights are harmful and detrimental ? and they are going towards intellectual feudalism ?
Read radical news here
What if Shakespeare was still in copyright? Or Beethoven, or Bach or Chaucer or Gilbert and Sullivan.
While I think we are on the same side of the copyright issue, I think your argument isn't really a strong one. I mean, what would happen if Shakespeare's work was still under copyright? Books of his collected works would cost about the same (supply/demand would be about the same). I don't see a lot of obviously derivative work that isn't parody, which is allowed under copyright law. Academic analysis is also fair game, so we wouldn't lose out on the countless books about his writings. What would we lose here?
A better example might be some author's work that is important, but not the world's most renown writer. There isn't much risk of the Bard's work from going out of print, but this is a very real issue with lesser know authors.
HA! I just wasted some of your bandwidth with a frivolous sig!
Then *AA just need to found a new country and make it so every work is registered there and say copyright never expires on that country?
It benefits the people that you pay off to change the rules. ( ie,congress/judges/attorneys )
---- Booth was a patriot ----
The clawback of culture that we in common own in the public domain into private monopoly without compensation for our loss is theft. It is a theft from each of us. It is a theft from all of us. It is theft on a grand scale. It's unconstitutional. It's wrong.
Help stamp out iliturcy.
Supreme Court will overturn this.
Respect the Constitution
I don't see a first amendment issue here. I find the notion of removing works from the public domain (for any reason) to be abhorrent, but the court is correct when it says there are no first amendment issues.
See that "Preview" button?
They did argue that the first time around, 3 years ago. It was promptly shot down due the to precedent set by the Eldred case, as was widely expected.
Posting anonymously as I have moderated in this thread. However, as I am only providing information and not arguing a point, I don't think I am abusing the spirit of that rule.
So, if the public domain is taken away from people who are using it in their business, isn't that a taking ? Since my company uses public domain videos, who do I apply to for money to compensate me ? (This would fit right in with recent Supreme Court rulings concerning takings.)
Just print the American constitution on toilet paper. Then it would be useful again.
The act of taking something out of the public domain is an expropriation of public property with the intent to give it to one person. This is different from granting property rights to authors of new works.
Having a monopoly on publications of Shakespeare's works would probably affect the supply.
Not really. A publisher could restrict printing his works in an attempt to drive up demand, but since his works have been published for several hundred years, there is a pretty good sized secondary market. Eventually, given enough time, they could drive demand up, at the cost of a lot of missed sales. Since his plays are basically a luxury item, I am not sure that this would really work. So, I am suggesting the supply would be about the same as it is now, because there is no real financial incentive not to keep his works in print, and in the same quantity as we see now.
HA! I just wasted some of your bandwidth with a frivolous sig!
We invented these sanctions to make other countries do our _stupid_ stuff, the fact that this same we is now using those sanctions to back-door a policy into our legal establishment is something of a fairly obvious ploy.
1) Fail to pass intellectual land-grab law.
2) Craft "treaty" to require such land grab in other states (governments).
3) "Discover" that we now are required by treaty to have intellectual land-grab power.
4) Take case to court and get court to uphold intellectual land-grab policy.
Back-door law successful. End-Around of due process and checks-and-balances successful. Have a nice day.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
The Constitution established that you can have monopoly rights through copyright.
The government defined those rights through copyright law.
Historically, it has then been your responsibility to protect your own rights through civil suit.
That is until relatively recently when the copyright cartel paid off our lawmakers to turn the government into their enforcement arm.
There is no conflict between the right to free speech and the exclusive rights of copyright. Just like there is no conflict to your right to free assembly and my right to prevent you from exercising that right in my back yard (private property).
Congress has the right to regulate copyright, and courts have the right to interpret the 1st amendment. Both have spoken. Some don't like what they said. That's fine. Its a free country. Elect someone else.
My bet is that this will be seen by the Supreme Court, and the SCOTUS will probably rule that retroactive is either not constitutional. Even if the retroactive implementation is ruled constitutional, infringers would have an affirmative defense, namely that the infringed work was in the public domain when the infringing work was created.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
http://cr.yp.to/export.html
sure it's free speech vs export rather than free speech vs copyright, but a lot of what DJB did with respect to submitting all sorts of documents designed to blur the lines between software and speech is relevant to this argument.
"If still these truths be held to be
Self evident."
-Edna St. Vincent Millay
No, he's saying that copyright law and the fugitive slave law were both laws designed to protect property owners from having their property seized by others. In one case, our definition of what can constitute "property" has changed since the law was made. In the other case, it needs to.
Support Right To Repair Legislation.
'if Congress felt taking away from the public domain was in its best interests'
It's best interests?! IT?! IT IS AN IT! And people created IT. And it's about time people destroyed IT.
*DrugCheese rants*
I know the whole "for limited times" provision was held by the Supreme Court to mean "for unlimited time", but c'mon? What part of "No" don't they understand? For that matter, where is the "just compensation" without which "nor shall private property be taken for public use" according to the Fifth Amendment?
MSIE: The world's most standards-complaint web browser.
This is nothing less than theft. Once in the public domain, I own it. You own it, we all own it. It's literally stealing from everyone and giving to few.
*DrugCheese rants*
Well said! -- although a lot of people seem to be confused about what you mean. Even those who are trying to defend you seem to misunderstand you.
Let me take a stab at restating this:
Defenders of draconian copyright enforcement are always complaining about how expensive it is to develop their creative works. They've invested soooo much! (Or they cite the money they project they could make -- from an economic standpoint, it's the same thing.) They paint a picture of a huge pile of money, invested in their art. And all that money, that mountain of cash, is regarded as the justification for strict laws against those 'stealing' their MPEGs or MP3s: 'We've invested a lot, so we are entitled to a lot of protection.' What skywire is pointing out is that, per se, a massive investment doesn't entitle you to anything. Ideally the rule of law exists only for the good of society, and if it protects material investment sometimes, it does so only as a means to the end of guarding society.
The 'but I paid good money' argument is spurious -- yet it is cited as justification for legal and moral outrages both large and small. In fact, the law should serve the people, not just the investors.
$META_SIG_JOKE
You may be right about the technical meaning of "free speech" in American law. But in the broader context of what does it mean to communicate and debate in a democratic society, your description appears insular and shockingly ignorant of theoretical and empirical work about democracy and culture. The fact that courts once ruled that women were not persons did not in fact mean that women were not persons. It had legal effects, but it could not take away their personhood. Similarly, court interpretations of statutes concerning "free speech" do not define the limits of that term.
Public discourse is understood as foundational for democracy. Through speech and expression individuals express their interests in public, gather information to form opinions, sway others with argument, and form groups able to take effective political action.
The political significance of speech does not depend on it being original, unpopular or offensive. The opposite is true: it is when speech is popular - when it is disseminated and copied - that it becomes politically powerful. The unpopular words of one man don't matter. The same words uttered by many do. Classic examples include slogans like "no taxation without representation," iconic symbols like the peace sign, pamphlets like "Common Sense." Recall the scene in Casablanca in which the French stand up and sing La Marseillaise. It is not the words themselves that matter, or the fact that someone sings them: the whole point is that a whole people rise up and sing the same thing.
The idea/expression dichotomy is held up as defense. But it is flawed. It assumes that an expression expresses single idea (or set of ideas), and that each idea can be expressed in multiple ways. Casablanca illustrates the problem with this. The meaning of that song in that bar with the Nazi officers is not the *words* of the song. The meaning is the act itself, of singing in the face of the Nazis. The meaning is very different from the anthem sung on Armistice Day (the French equivalent of Remembrance Day). The same expression can be used to express original meanings. Furthermore, this particular expression is not substitutable. A bar full of French saying "we reject the Nazis" would seem pathetic, not powerful. Finally, this is a political - and democratic! - expression founded not on reason, but on emotion.
To the extent that copyright limits the dissemination of expression that can be used or repurposed with democratic or political significance, it impedes the free ability of citizens to speak and participate in democracy. The law may say that's not "freedom of speech" if it likes. It does not make it so.
Here is the scene in Casablanca. I am using it to make a political point. And copyright most definitely can stop me.
Besides, the whole "corporations are people" as a legal concept is based on a lie. The courts kept ruling against the "corporations are people" argument, so some corporations paid some clerk to modify the summary/abstract of a case to say exactly the opposite. Because people were too lazy to read the whole case instead of just the summary, people assumed the result of the case was the opposite of what really happened, made rulings based on this assumption, and voi la! Corporations are now people!
Since bribes are now considered "free speech", I guess this was a perfectly legitimate way of changing the law to suit your own tastes.
I can usually see some sort of sense in these matters...even when I disagree. How does this make any sense? Here's all I can come up with:
Governments rule by technology. That used to be 'sword and steel'. Then it was the gun, but that was a precarious time for governments world-wide because guns were cheap enough for commoners to own (and for 'legitimate' purposes). Now, the technology/knowledge used is more sophisticated, subtle, and expensive. As long as technology is not in the public domain, only those with wealth and power have access to wield it.
I prefer not to lean on such 'tin-foil-hat' theories for government actions. Can someone post a reason that doesn't seem so nefarious?
In reading the actual text of the decision, it looks like the only works with restored copyrights were not those that were expired, but basically those foreign works works (from one specific country) that were not under explicit US copyright protection due to technicalities, but would have been under the Berne Convention anyway.
In other words, the treaty that specified the restoration basically set the record straight in terms of US copyright what was already copyrighted due to the Berne Convention.
Sorry, this is Slashdot, I forgot. "Zomg RIAAMPAAEVVILLLL!#@!(#!"
Limit patents and copyrights to 5 years. Charge a moderate filing fee. Allow renewals, but triple the filing fee each time. Company A buys Company B and inherits Company B's IP? OK. Pay the renewal fee when it comes up. Eventually, everything becomes public domain. The government has a new substantial revenue stream.
Congress dictates the rules of copyright.
The Kruger Dunning explains most post on
Congress basically repudiated support for a meaningful public domain with the 1976 Copyright Act and subsequent amendments, by making the term of Copyright last beyond a century ("70 years plus some life in being" or out to 120 years if copyright was owned by a corporation). The original Copyright Act of 1790 set a term of 14 years with the option to renew for an additional 14 years, ensuring the rapid development of a valuable public domain. Since 1977 additions to the public domain have slowed to a crawl. We will have to wait more than a century to see new contributions to it from contemporary sources. By then many out-of-print works long abandoned by their copyright owners because re-publication is uneconomical, will have disappeared altogether. If Congress were to set more reasonable limits on Copyright, projects like Google Books wouldn't have to proceed under the unsure cover of the Fair Use doctrine.
eldapo
kommunist.
I mean sure, a long time ago already, but this just bakes the cake.
The liability limit won't be capped if (when) BP is found negligent but all of that is a long way down the road. The point is BP was almost surely going to pay more than $75 million in liability for this. This also wasn't really a matter of law as much as an agreement that BP didn't have to take. BP would have been well within their rights to say no and the US government was well within its rights to tell BP they'd never get another drop of oil out of a US well ever again and sell the US government another drop of fuel. That's completely reasonable as I wouldn't trust BP to drill in the US under the measly threat of a $75 million liability.
If you didn't come to party don't bother knocking on my door. Prince '1999'
The point of this is to enhance the precision by which some authors get more exposure than others. There is a real incentive here: If an author has ideas you like, you can buy more exposure for him. If you don't like his ideas, just save your money. Over time this can create a world that's more comfortable for you and whoever shares your ideas. In effect, you buy your future prosperity.
Shakespeare will not be affected. His works have lasted long enough to become engrained. Had this ability of "idea control" arisen only a hundred years after Shakespeare's time, how would his work be viewed now?
To change the recent past is easier than to change the distant past. (Our ability to control our present future is evolving wildly.)
Your argument has nothing to do with mine. I said nothing about government stifling dissent. The possibility had not even crossed my mind. You say that as though the mere fact that government does not stifle dissent does not magically produce democracy. It just ain't so.
You are focusing on controversial speech and dissent. This is a grave error. If you look at the formation of consensus and uncontroversial speech it is very clear how copyright can concentrate communicative and political power.
Democracy is founded on speech and expression, as I outlined. It is the positive consequence of political speech and participation. People actually need to be informed, to engage each other in discourse, to form opinions, to gather information, and to express their interests. (Nor is this an exclusive list - they also need to form identities, work together in communities and so on.) There has been a lot of work in this area in fields ranging from political science to cultural studies. See for example the work of Jürgen Harbemas, for example, who revived the concept of the public sphere.
To the extent that citizens are restricted or hindered in their attempts to take part in democratic discourse, democracy is limited. Exclusion from cultural discourse has similar effects. When this is the outcome, it does not matter whether it is because of direct or indirect intervention from government or private actors. With copyright we have an institution that is can obviously limit the engagement of citizens in the activities that produce a democratic society. An argument can be made for a given copyright regime the benefits (including informing the populace and creating spaces for discourse and deliberation) exceed the harms. Regardless of the net effect, it does not erase the the conflict between promoting discourse on the one hand and limiting it on the other.
The point of this is to enhance the precision by which some authors get more exposure than others. There is a real incentive here: If an author has ideas you like, you can buy more exposure for him. If you don't like his ideas, just save your money. Over time this can create a world that's more comfortable for you and whoever shares your ideas. In effect, you buy your future prosperity. Shakespeare will not be affected. His works have lasted long enough to become engrained. Had this ability of "idea control" arisen only a hundred years after Shakespeare's time, how would his work be viewed now? To change the recent past is easier than to change the distant past. (Our ability to control our present future is evolving wildly.)
It can't mean instant infringing, because that would be an ex post facto law and would give constitutional grounds to fight it in court. It will mean immediate discontinuing of business practices and loss of investments, though. I don't know what it will mean to merchandise already produced. It's highly unethical, any way you look at it.
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
What's weird to me is that the first amendment issue only came up because the same appeals court ruled that the trial court hadn't adequately considered the first amendment implications of the case. On the basis of seemingly contradictory rulings from the same appeals court, it seems like it should go to SCOTUS or at least to an en banc hearing at the appeals court. The good news is that this is a reversal of a summary judgment, so the effect is basically that the plaintiffs cannot use first amendment arguments at trial assuming the case goes in that direction.
The bad news is that I don't see the conflict between the first amendment and copyright. Free speech is designed to protect speech based on subject matter content, not protect speech based on word for word repetition or paraphrase. Conversely copyright restrictions explicitly exclude collections of data (subject matter) and protect the _form_ of the expression/speech from reuse. The overlap is extremely small. I'm surprised the ex post facto clause of the constitution wasn't used, unless there's too much precedent against it.
The best news: IANAL, so anything can happen.
We are the 198 proof..
You can buy a congressman for cheap and get anything passed. Betcha you could make it illegal not to eat your own faeces in all 50 states on a daily basis for a couple of hundred thou. We have a parliament of whores for a legislature.
Allowing the Berne Convention to overide the 8th amendment of the constitution of the USA is precisely the evil we are concerned with.
Foreign treaties must not countermand citizen rights.
Changa hates change.
While Pinero was one of his story characters, the quote is pure Heinlein.
SB
It's old. The more humans I meet, the more I like my cats. At least they are honest.
This would likely run afoul on the constitutional prohibition against ex post facto laws.
Retroactive conviction for copyright infringement would seem to violate that.
it's not property, it's thought. Ideas. That's the trouble with the copyright debate, we've already lost because we're using their words (IP, DRM) and assumptions.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
An ex post facto law is a law whose effective date is before it was passed. A law is allowed to stop a previously legal activity -- if you think about it, the first law that banned any given illegal substance is criminalizing a behavior that was previously legal. The problem with ex post facto is when the law takes effect.
Example: if I pass a law in 1930 saying that cocaine was illegal starting in 1920 and try to prosecute someone who smoked crack in 1925, that's an ex post facto law in violation of the constitution. The person who smoked crack in 1925 had no way to know it would become illegal. If I pass the same law in 1930 but make it effective in 1931 and only prosecute people who smoke crack starting in 1932, that's not ex post facto. The people in 1932 who violated the law did so after the law was passed, so they had an opportunity to stop.
In this case, if the law tries to prosecute artists who already copied the works in question, then it would be ex post facto. But if it only prevents them from making new copies, then it's not ex post facto. Of course, it might be a bad law for reasons other than ex post facto.
Q: "What are 500 lawyers at the bottom of the ocean?" A: "A good start."
I respectively submit that it be officially changed to: "What are 500 judges at the bottom of the ocean?"
Some days it's just not worth
chewing through my restraints.
You can get caught up in which law has or has not been broken or what constitutional right may have been infringed but the rights and wrongs of it boil down to what people want, and what they can get away with. Someone wishing to watch a film will want to watch it as cheaply as possible. Someone making a film will want to receive the maximum reward they can achieve.
All the rest is posturing by the affected parties to achieve those ends and possibly compromise to their mutual satisfaction.
Lawyers love arguments like this because there is already a whole slew of laws in place around the world which dictate that no matter who is 'right' and who is 'wrong' the lawyers are the winners.
It is the legal cartel we should be focusing on. That drag on the finances of every man woman and child around the world gets away with its closed shop far too easily.
Your arguments are a lot of unlikely 'what ifs'. Yes, they are possible, but quite unlikely if the copyright is owned by any normal minded business person.
A good example of why your claims are unlikely, look at the works of Tolkien. His estate still owns the rights to all of his works, and his writing are in many top 100 lists of the 20th century. And yet, his works are widely available at a cost that is the same as novels.
So again, I don't think that this is a good argument for why copyright can be a bad thing.
HA! I just wasted some of your bandwidth with a frivolous sig!
I believed too hastily that this was accurate. My sense of honesty begs me to correct this: The point of this is to increase the accuracy with which some authors get more exposure than others. "The point of this is to enhance the precision by which some authors get more exposure than others," is a statement that is cryptic, and is subject to different interpretations.
...helpfully inserting blank lines since...a long time ago...
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."