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.

Comments

The RIAA are not people

[cdpage]

The RIAA are not 'people'

Re:The RIAA are not people

[Dachannien]

Too bad. I was hoping to pick up some Soylent Recording Execs at the store later today.

Re:The RIAA are not people

[PotatoFarmer]

I guess that would depend on what you mean by "using it". The ruling itself appears to be mostly concerned with people who have produced derivative works (e.g. performances, recordings, etc.) of items that are in the public domain in the US but were originally produced and are still under copyright in their country of origin. As far as what will happen, I'll let this excerpt from ruling speak for itself:

"a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation . . . ." If the parties are unable to agree on reasonable compensation, a federal court will determine the amount of compensation

Re:The RIAA are not people

[cdpage]

A Corporation [if you classify it as a person] would be defined as sociopath. Would you ask a sociopath what is best for you or for the people?

really? would you?

Re:The RIAA are not people

[careysub]

So, groups dedicated to gaining power to dictate the behavior of others (political power) are more moral than groups dedicated to acquiring greater wealth (economic power)?

There is no such dichotomy.

There are groups dedicated to "gaining political power" (loaded phrasing for "influencing public policy", they aren't political parties and thus never have political power directly) and then there are corporations that already have power (through their wealth) and wish to increase that power, AND IN ADDITION are ALSO dedicated to "gaining political power" (that is, influencing public policy).

It is a very tilted playing field, with corporations already having tremendous advantages over everyone else, and always seeking to increase those advantages.

Pretending that there is any sort of equivalence between public non-profits, and international corporations in influence, or morality, or anything else is as crazy as asserting that negotiations between an individual employee and an international corporation over terms of employment is one between equals.*

*Many right wingers will fail to see the preposterousness of this latter example; for them there is no hope of enlightenment.

Re:The RIAA are not people

[slick7]

"Doctor Pinero" in Life-Line (1939)
There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.

ALL copyright is a restriction on free speech.

[schon]

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.

Re:ALL copyright is a restriction on free speech.

[v1]

Copyright applies to a great deal more than speech.

But yes, that ruling stinks. It basically says someone with lobbying dollars can buy exceptions to the first amendment. And at the same time it reinforces the eagerness of the courts (federal in this case) to sell out to big business/groups whom they are trying to fool us into believing are somehow representing "the people". If you want to be making that sort of comparison, "big business" is pretty much the polar opposite of "the people".

Re:ALL copyright is a restriction on free speech.

[rolfwind]

Copyright was in the original constitution, free speech was not:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

However, unlike what this ruling seems to say, the Constitution gives congress no authority to reassign ownership of works and I'm pretty sure "limited time" is now is nowhere near what the founders had in mind.

As far as I'm concerned, what should be focused on here is the ban on passing Ex Post Facto laws in the Constitition:
http://en.wikipedia.org/wiki/Ex_post_facto_law#United_States

This seems like such a breach.

Re:ALL copyright is a restriction on free speech.

[jabbathewocket]

Wrong because "free" speech has nothing to do with copyright or vice versa.

Free speech means you can say unpopular things, things that disagree with the "establishment", things that are inflammatory, things that are downright disgusting (in some segment of the populations opinion)..

Free speech does not mean you can copy things either privately or for profit.. it never has and it never will. Fair Use/Copyright/Public Domain are all interrelated with only each other.

There are times when Free speech and Copyright may cross paths.. (such as I dunno.. someone putting out a scathing unauthorized biography of a political figure.. and selling that book/movie.. and then suing someone else for trying to copy his or her work and sell it)

I really wish that people who are so into constitutional/bill of rights issues would at least do the rest of the world a favor and get a passing knowledge of the subject first.

This misunderstanding of Free Speech comes up nearly as often as the complete and utter confusion over "the right to keep and bear arms" clause.. not to mention the strict constitutional interpretations that conveniently (much like religious zealots) ignore the parts that they do not like or agree with.

Re:ALL copyright is a restriction on free speech.

[skywire]

The fugitive slave laws are a system to ensure that those who have spent good money buying and training Africans don't get screwed just cause some abolitionist runs an underground railroad and could, hypothetically, free as many slaves as possible.

Re:ALL copyright is a restriction on free speech.

[ghrucla]

There are two legal issues here:
1) This is a straightforward application of the Supreme Court precedent in Eldred v Ashcroft. Lower courts are bound by SCOTUS precedent and so this is an easy call in terms of case law even if you think (as I do) that it's bad policy and Eldred was wrongly decided.
2) It's not a First Amendment issue but an Article I, Section 8 issue and in particular if you read the clause "to promote the progress of science and useful arts" as meaning that Congress can only grant IP rights when such rights are likely to incentivize creativity (which would exclude retroactive grants).

Re:ALL copyright is a restriction on free speech.

[nunojsilva]

I guess he means "not allowing people to read/share/copy a book is like keeping people as slaves".

This sounds like "the content wants to be free".

After all, it makes sense to have some ability to control our own work. The problem is that instead of just assuring people don't get robbed, the congress usually gives *AA sort of a license to kill.

Re:ALL copyright is a restriction on free speech.

[kappa962]

Absurd. At no point did his comparison imply that problems with copyright are as significant as the problem of slavery.

What is the problem with comparing things with other things of a much greater magnitude? When people compare electrons to planets, do you object because planets are obviously much, much larger and clearly must have nothing at all in common with something with such a far removed size?

His sentence was clearly saying that not screwing specific people over is not always the most important thing. This holds true for big issues like slavery, and for small issues like copyright. It's a valid comparison. What's so wrong with that?

Re:ALL copyright is a restriction on free speech.

[paeanblack]

After all, it makes sense to have some ability to control our own work.

One you publish it, it's not "yours"; you don't own it. The phrase "control our own work" loses all meaning when applied to published content. If you don't understand this, you don't understand the Constitution, since it's the fundamental principle behind copyright law.

Congress shall have the power:
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The two most important points here:
1) The purpose of copyright is not to enrich authors and inventors. It exists to provide incentive to authors and inventors to publish their works for the benefit of society.
2) Congress can limit the duration a copyright and can do so without due process. Congress can't expire your rights to things you actually own, like the shirt on your back.

If you have an unpublished manuscript, you own that. Destroy it, toss it in a fire, do whatever you like with it; it's yours. The moment you publish, you give up your ownership. You have no rights to recall, revoke, or destroy the copy of your published manuscript that is in my head. That's mine, not yours.

However, we like manuscripts, and we want you to write them. In exchange, we offer you a time-limited exclusive control over certain rights of ownership. We will never give back ownership (we can't), but we will give you back a taste of what you had before you published. This is your payment for publishing the manuscript and giving up ownership. We wish you the best in exploiting those rights as you see fit.

Just don't make the mistake of thinking you still own your published material or that you even should own it. The rights a person has over their own thoughts in their own head supercede any and all property rights.

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it." --Thomas Jefferson

Public Domain erosion

[drumcat]

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?

Finally the right call

[Anonymous Coward]

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.

Re:Finally the right call

[Anonymous Coward]

The part of Section 514 at issue here applies only to (1) works that were based on public domain works which (2) fell into the the public domain because the US was not complying with its Berne Convention obligations. Section 514 restores copyright to the works /that should have been copyrighted to begin with/. It does this because international obligations require it (not because Congress wanted to). It applies only retrospectively, and CANNOT be used to protect new works in any new way.

This means that (1) the US is only meeting treaty obligations, providing the same level of protection as that afforded in other WTO nations, and (2) the application is limited to a finite number of works and affected authors.

Re:Finally the right call

[cpt kangarooski]

First, our treaty obligations do not override the limits on the federal government imposed by the Constitution, either as a matter of law, or, frankly, proper policy. If the political branches enter into a treaty that requires the US to act unconstitutionally, then we will unavoidably have to violate the treaty until we can fix it, or get out of it. If TRIPS requires this, then we cannot comply with TRIPS.

Second, you're assuming that we need to even participate in TRIPS; we don't. The US has a strong enough position that we don't need to enter into any copyright treaties, quite frankly. Our relevant industries are quite capable of dealing with that, just as they dealt with the US not being in Berne until 1989. Our copyright law has become bad enough due to domestic actors, but the 'back door' created by treaty obligations is completely abysmal. It helps to get laws pushed through Congress without debate or the opportunity to amend them, lest we be in violation of yet another foolish treaty.

The US should immediately withdraw from all copyright treaties, amend its copyright law to best serve the domestic interests of all Americans (not merely creators and publishers), should unilaterally offer national treatment to foreign authors, provided their works are published in the US and otherwise comply with the formalities we need to re-establish and strengthen, and should limit its international involvement in copyright matters to informal cooperation with other states to ensure that their copyright laws do not in some way become mutually incompatible with ours (typically due to formalities). In this way, we would not only improve things for ourselves, while not materially harming our own copyright-related industries, but we would be reigning things in, and once again provide guidance to the rest of the world as to how copyright laws can work sensibly. That's something we haven't done a good job of in the 20th and 21st centuries, particularly since we enacted the disasterous 1976 Act.

There's a reason to have an ever expanding public

[rufty_tufty]

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?

I don't like it, but it's probably correct

[Jerf]

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.

Re:I don't like it, but it's probably correct

[TomXP411]

I think you nailed it.

People claim this is a First Amendment issue, but I can't see how. Free Speech isn't about publishing other people's works; it's about protecting people's right to disagree with the government.

More to the point, though: Copyright law is not part of the Constitution, so Congress has every right to change it as they see fit.

I don't like it. I don't like how Copyright has become a way to protect big companies at the expense of the little guy. But I can't see any way to interpret the First Amendment so that it conflicts with Copyright and Congress's right to extend it.

Re:I don't like it, but it's probably correct

[cpt kangarooski]

People claim this is a First Amendment issue, but I can't see how. Free Speech isn't about publishing other people's works; it's about protecting people's right to disagree with the government.

Well that's just completely wrong. You are saying, for example, that if I wanted to stage a performance of Romeo and Juliet, which was wholly apolitical, the government could arbitrarily choose to shut me down, because I am not Shakespeare, and I am not criticizing them? That's absurd.

The First Amendment protects speech, period. Political speech is of particular concern, but it protects artistic speech, commercial speech, etc. just as well. It also protects people when they repeat the speech of someone else, rather than create their own. We temporarily limit that last part with copyright, but the underlying right doesn't discriminate. That's why when copyright expires on a work, there is no affirmative grant to the public to use that work; instead the restriction is lifted, and the previously-dormant free speech right can finally be exercised.

Copyright law is not part of the Constitution, so Congress has every right to change it as they see fit.

Only within Constitutional bounds. And the Constitution does set some limits and requirements on what Congress may do.

Re:This is stupid

[digsbo]

There's no rule of law any more. Look at the issue in the Gulf: Congress limited liability in 1990, but now the Federal government sees a political opportunity and so puts pressure on BP to pay up above the legal limit. It's rule by force today, with the rules on sale to the high bidder at the moment (given that political capital is worth more to Congress than money at the moment).

Idiot bloody lawyers

[Rogerborg]

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.

Article I, Section 8, Clause 8 of the United States Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

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.

Wow

[citylivin]

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.

Why are you worried about RIAA when...

[SunSpot505]

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?

Oook, still not convinced ?

[unity100]

that patents and copyrights are harmful and detrimental ? and they are going towards intellectual feudalism ?

Re:Why not?

[Lockejaw]

Books of his collected works would cost about the same (supply/demand would be about the same).

Having a monopoly on publications of Shakespeare's works would probably affect the supply.

Re:RIAAland?

[gstoddart]

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?

That's what ACTA is for.

See, a bunch of multi-nationals have lobbied the US to do something under the guise of helping US interests. Then they lobbied them to force everyone else to get on board with the same laws so their stuff could be protected internationally. After that, they own everything everywhere.

Who needs a new country when you can slowly bring about an oligarchy in all of them and then call the shots?

US Constitution, Article 1, Section 9

[TheABomb]

No Bill of Attainder or ex post facto Law shall be passed.

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?

Theft

[DrugCheese]

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.