Supreme Court Takes Up Scholars' Rights

schwit1 writes with this quote from the Chronicle of Higher Education: "For 10 years, Lawrence Golan has been quietly waging a legal campaign to overturn a statute which makes it impossibly expensive for smaller orchestras to play certain pieces of music. Now the case is heading to the US Supreme Court. The high-stakes copyright showdown affects far more than sheet music. The outcome will touch a broad swath of academe for years to come, dictating what materials scholars can use in books and courses without jumping through legal hoops. The law Mr. Golan is trying to overturn has also hobbled libraries' efforts to digitize and share books, films, and music. The conductor's fight centers on the concept of the public domain, which scholars depend on for teaching and research. When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties. The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. The Supreme Court is expected to decide the case during the term that begins in October."

Comments

Re:US-centric

[phantomfive]

Yeah, I've always wondered why, in a site that exists mainly from user contributions, why those non-USians don't contribute more. Then we could get news from all around the world. It would be great. Why don't you do it?

sadly he is going to lose

[burris]

Both the Copyright and the Supremacy clauses are working against him. Congress has the power to grant copyrights and in Eldred the Court said as long as they theoretically expire at some point in the future then all is well. Also, signed and ratified treaties are, along with the Constitution, the supreme law of the land. Yay for "harmonization."

Re:sadly he is going to lose

[Adrian Lopez]

As far as I know, copyright on works affected by the Eldred decision had not yet expired. I don't agree with the Eldred decision, but I think there's a big difference between extending the term of protection on copyrighted works and granting copyright on works that have entered the public domain. They're simply different issues.

As for treaties and the US Constitution both being considered "the supreme law of the land", such an observation does nothing to address how conflicts should be resolved when one bit of "supreme" law contradicts another bit of "supreme" law. I don't have much confidence in the US Supreme Court these days, but my hope is that any conflicts shall be resolved in favor of US citizens.

Re:sadly he is going to lose

[burris]

You're right that Eldred doesn't directly apply but it reveals the justices thinking. As the infamous Jack Valenti said before Eldred was decided, "Limited means whatever Congress says it means." I doubt much has changed since then.

I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

Re:sadly he is going to lose

[White Flame]

My take on things is not that congress simply has the power to grant copyrights, but that congress has the power to grant copyrights "to promote the Progress of Science and useful Arts". As in, if copyrights are granted for any other reason (e.g. to appease lobbyists or make any entity more money), it is an unconstitutional act.

Re:sadly he is going to lose

[Adrian Lopez]

I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

That's a good question. I don't really have an answer except to say that restoring copyright on works for which the term of copyright has already expired makes "limited times" a meaningless concept. I realize that's basically the same line of reasoning used in Eldred, but my hope is that extending copyright on public domain works is outrageous enough that the justices will think straight for a change and recognize this.

Re:sadly he is going to lose

[Dachannien]

Actually, there is fairly old case law that affirms that the Constitution trumps any treaty. I'm not sure whether that helps in this case, though, since it's unclear how much weight SCOTUS would actually give the "to promote the progress of science" clause in determining whether Congress has the power to place public domain works back into copyrighted status. Plus, there's the Commerce Clause to rain on everyone's parade yet again.

Personally, I think this would be more interestingly argued as an unconstitutional taking from the public without just compensation in violation of the fifth amendment.

Re:sadly he is going to lose

[Lloyd_Bryant]

I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

Perhaps not, but try explaining how doing so "promotes the Progress of Science and useful Arts". Do you really think that the creator of something that has actually expired out of copyright into the public domain is going to start creating new works if his (very) old stuff is returned to copyright? In reality, even before the most recent extension of copyright terms it was more than likely that the original creator was long dead before the copyright expired.

Unfortunately, what will happen is that if this point is even brought up, the Supreme Court will simply rule that this is a type of commercial regulation, and hence allowed under the all-powerful Commerce Clause.

Re:sadly he is going to lose

[metacell]

It's also legally very problematic to retroactively revoke rights. If a work is in the public domain, you have the right to do what you want with it, including performing them publicly and creating derived works. If the work becomes copyrighted again, who owns the derived works? What happens if someone has bought and paid for the copyright to a derived work?

Re:sadly he is going to lose

[Attila Dimedici]

That is interesting and if it is well enough documented I hope the lawyers arguing against this law bring it up. The conservative Justices on this Court are very receptive to "original intent" arguments. I think that even 99 years is way too long, but it would be nice to have a Supreme Court ruling that says that anything more than 99 years clearly exceeds "limited time" as understood by the Framers of the Constitution.

Re:sadly he is going to lose

[rbrausse]

If the work becomes copyrighted again, who owns the derived works?

uh, The Walt Disney Company?

ha, this question was a simple one :)

Re:sadly he is going to lose

[dgatwood]

Well, ex post facto laws and bills of attainders are interesting, but they do not apply here.

An ex post facto law would retroactively make it illegal to have performed or sold copies of a work during the time in which it was out of copyright. This law change did not do that.

Similarly, a bill of attainder is a bill that declares someone guilty of a crime and strips them of rights without a jury trial. This only does half of that, as it does not declare them guilty of a crime, but merely deprives them of property (IP rights) and grants them to someone else. That somewhat narrower right has been upheld in SCOTUS decisions before, with Kelo v. City of New London being the canonical example.

It's actually the fourth amendment that applies here, not the ex post facto clause, nor the bill of attainder clause. What this law changed was future use of the work. This means that copies of the work that you recorded while it was not under copyright can no longer legally be sold or performed.

By any reasonable interpretation of the fourth amendment, this is an unwarranted, unreasonable seizure of property (intellectual property rights) held by thousands (if not millions) of people. Your right to continue to use sheet music that you own (music that you are physically in possession of) ceased to exist when this law was passed. Your right to play CDs, tapes, DVDs, and LPs that contain recordings of this music no longer exists. Your right to sell recordings of these works recorded during that era no longer exists (whether you are the performer or someone who previously acquired a copy) because doing so is considered criminal commercial violation of copyright.

In effect, the government came and seized every copy of this music, not by court trial, not by armed infiltration, but by signing a law. And afterwards, they gave that property, not to the public, not to a private company or individual for public use, but to an individual with the intent of preventing existing public use and extracting money in exchange for future public use. That's contrary to both the spirit and the letter of the fourth amendment by any reasonable standards. And that's the key to understanding why this case is neither like Eldred v. Ashcroft nor Kelo v. City of New London.

When Lawrence Lessig went to the supreme court

[phantomfive]

I remember reading that when Lawrence Lessig went to the supreme court to challenge copyright law, the court kept asking for examples of damage caused by the law, and Mr Lessig kept answering in abstract legal/constitutional principles. The court seemed to be of the opinion that, "if it's not hurting anyone, (and is benefiting copyright holders), there's no reason to change it."

So this time the professor has lots of evidence that actual damage is being done. It will be interesting to see if the court changes their opinion based on this new evidence.

Re:When Lawrence Lessig went to the supreme court

[SuricouRaven]

It works the other way around: Those who havn't shown a career of consistant loyalty to the right people aren't going to get into the supreme court. Those people being the democratic or republican parties - which one just depends who is president at the time of appointment. Neither one can afford to appoint a judge that isn't going to advance the agenda of their party, because that's exactly what the other party will do regardless.

Re:When Lawrence Lessig went to the supreme court

[NeutronCowboy]

Lessig answered in abstract terms because it is very, very difficult to quantify the cost of removing something from the public domain. It's easy to see the benefit: just count the revenue generated by the IP for the rights holder. I suspect that Golan is going to run into the problem of "I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?" Damage might be there, but it is always put into the context of the benefit derived from the existence of the copyright. And he's going to lose that battle every time: because music in general is a big market, and therefore there is no need to play a particular piece - but an individual rightsholder derives direct benefits from the royalties of a particular piece that he/she can't derive from any other piece.

Sometimes, in the rush to quantify everything, we forget that part of what makes us a civilization is the culture that we have in common. What is the value of that? I don't know. What price is a life? I don't know either. Sometimes, abstract considerations are necessary to work around the morass that is the monetary valuation of a moral position.

Re:When Lawrence Lessig went to the supreme court

[Rogerborg]

With respect, I believe that Lessig also answered in abstract terms because he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate. Ultimately, his argument was reduced to "Aw, c'mon", and appropriately enough, his textbook knowledge has provided a textbook example of how not to argue a case.

Re:When Lawrence Lessig went to the supreme court

[metacell]

"I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?"

You're probably right that the judges will reason that way, but the proper answer to the above is:

"Granting Rightsholder A the right to make money from his sheet music does not produce any net benefits; it merely transfers money from the buyer to the rightsholder. The transfers need to stimulate production of new works to have a net benefit, and extending copyright on existing works doesn't qualify. Extending copyright on those works does, however, result in a net loss, since they have a hemming effect on the performance of said works, which means fewer people will be able to enjoy and benefit from them."

Re:When Lawrence Lessig went to the supreme court

[metacell]

You're conflating two different arguments here:

1. There's no actual harm to orchestras (untrue; and even if it can be argued that the harm is small in purely economic terms, it has a significant effect on academics, research and fine arts)
2. The smaller orchestras have no right to use music without paying (irrelevant, since that right was already granted to them by letting the works fall into the public domain, and taking it back at a later date is similar to confiscation)

You do understand that the issue here is letting works fall into the public domain and than taking them back, don't you?

Re:When Lawrence Lessig went to the supreme court

[Hatta]

he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate

In other words, Lessig argued based on the law. The Supreme Court ignored all that and ruled the way that would please their cronies. There's no way to explain the behavior of the Supreme Court in the past decade that doesn't involve corruption.

Re:When Lawrence Lessig went to the supreme court

[hey!]

I think it's more likely that he screwed up by not anticipating this question. That's a blunder, of course, and may reflect a little hubris if he thought he had a couple of slam-dunk arguments. If he had a few minutes he probably could have come up with a concrete example, but you don't get a few minutes to think because hostile justices will continue peppering you with questions.

Re:When Lawrence Lessig went to the supreme court

[sgtrock]

In Lessig's own words:

But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument.

It is over a year later as I write these words. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case could have been won. After our defeat, I received literally thousands of missives by well-wishers and supporters, thanking me for my work on behalf of this noble but doomed cause. And none from this pile was more significant to me than the e-mail from my client, Eric Eldred.

But my client and these friends were wrong. This case could have been won. It should have been won. And no matter how hard I try to retell this story to myself, I can never escape believing that my own mistake lost it.

...

When the Chief Justice called me to begin my argument, I began where I intended to stay: on the question of the limits on Congress's power. This was a case about enumerated powers, I said, and whether those enumerated powers had any limit.

Justice O'Connor stopped me within one minute of my opening. The history was bothering her.

justice o'connor: Congress has extended the term so often through the years, and if you are right, don't we run the risk of upsetting previous extensions of time? I mean, this seems to be a practice that began with the very first act.

She was quite willing to concede "that this flies directly in the face of what the framers had in mind." But my response again and again was to emphasize limits on Congress's power.

mr. lessig: Well, if it flies in the face of what the framers had in mind, then the question is, is there a way of interpreting their words that gives effect to what they had in mind, and the answer is yes.

There were two points in this argument when I should have seen where the Court was going. The first was a question by Justice Kennedy, who observed,

justice kennedy: Well, I suppose implicit in the argument that the '76 act, too, should have been declared void, and that we might leave it alone because of the disruption, is that for all these years the act has impeded progress in science and the useful arts. I just don't see any empirical evidence for that.

Here follows my clear mistake. Like a professor correcting a student, I answered,

mr. lessig: Justice, we are not making an empirical claim at all. Nothing in our Copyright Clause claim hangs upon the empirical assertion about impeding progress. Our only argument is this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

That was a correct answer, but it wasn't the right answer. The right answer was instead that there was an obvious and profound harm. Any number of briefs had been written about it. He wanted to hear it. And here was the place Don Ayer's advice should have mattered. This was a softball; my answer was a swing and a miss.

Re:When Lawrence Lessig went to the supreme court

[Hatta]

Bribes don't enter into it. It's all about old boys networks, and making sure the right people get in the right places to make the right decisions to benefit the right people. Their "rational" for their decision is nothing but misdirection.

You do realize you can have corruption without bribes right?

Re:When Lawrence Lessig went to the supreme court

[Hatta]

What explanation besides corruption is there for decisions like Al Kidd v Ashcroft? Anyone who respects the rule of law must recognize that our leaders must be not above the law. How do you get a unanimous decision that makes our leaders exempt from the law, unless the Supreme Court is corrupt?

Those who think that was an honest decision are not just borderline insane, they're completely delusional.

Re:I'm going to go out on a limb...

[phantomfive]

This is the problem when you make stereotypical judgements of the supreme court based on the few cases you care to pay attention to. Last time there was a major copyright case, it was 7-2 favoring the 'corporatists' (and not even all corporations favor copyright; only the ones who benefit from copyright favor it). Of the two who opposed it, one was appointed by a democrat, and one by a republican.

Also, what is your weird idea about terrorists legal cancer? For example, Rasul vs Bush was a huge defense of the rights of prisoners......it says that all prisoners, even enemy combatants, have the right to Habeas Corpus, which is huge, and was of course opposed by the Bush administration. The supreme court takes more into consideration than 'left' or 'right,' you should look into it some time.

the problem is Google

[Hazel Bergeron]

Google, by trying to make money from old works through discriminatory deals with publishers and libraries, has attempted to monetise the public-domain and the nearly-public-domain on a massive scale. No longer is the path to public domain a path to moving ideas and their expression into the people's hands - it's now something that a sufficiently large corporation will try to wrestle control of for itself. The law thus has good reason to view old works as subject to all the usual competition and ownership rules as new works.

The people are as much to blame for their passivity, of course. We, through non-profits and libraries, should have been preparing to distribute old work on a massive scale - to make it clear that it belongs to the people and it is in our interests to hold onto it for our enjoyment. Instead, we lazily allow business to deal with it. We suffer the expected consequences.

Re:the problem is Google

[Hazel Bergeron]

Just because something can be, it doesn't mean it is.

You might as well say, "Humans? Murderers." Are you a murderer?

Re:the problem is Google

[Sique]

Had Google acted philanthropically, they couldn't have shown damage from being no longer allowed to do so. Copyright is about business, and to argue about copyright, you have to show a business case.

Re:the problem is Google

[king neckbeard]

I'm not saying it worked, and it appears that it never has, but the way the modern incarnation (the previous incarnation being pretty much just about censorship to benefit the church and crown) was sold was on the premise that granting limited monopolies to authors would benefit society. In the case of the US, the clause in the constitution that allows copyright is limited to the purpose of 'promoting the progress.'

Re:I'm going to go out on a limb...

[Darinbob]

No, it's 8-1 because there's no evident legal basis to overturn the lower courts. The judges decide on the law, they don't actually make it (though they're accused of it all the time). They can't just overturn properly created legislation that does not conflict with other legislation or treaties or the constitution. It will be interesting to see what sort of legal theory for overturning it will be presented (I don't think "too expensive for small guys" will cut it).

Re:You have the right to be smeared.

[Anonymous Coward]

The 1994 law was passed by a Democrat majority congress and signed by Clinton. Keep knocking back that dkos kool-aid, numpty.

Re:I'm going to go out on a limb...

[burris]

Thanks to the wonderful SCOTUSblog you can read the opinion below, petition for cert, brief in opposition, petitioners reply, and the amicus briefs.

Re:You have the right to be smeared.

[Panaflex]

Oh yeah, because when you think Entertainment Mogul - the first thing that comes to mind is a Republican? Are you on crack agin??

* Doug Morris, CEO Sony Music (Formerly CEO of Universal Music), Democrat: http://www.campaignmoney.com/political/contributions/douglas-morris.asp?cycle=08

* Lucian Grainge, CEO Universal Music (Owned by Vivendi), Foreign. Democrat PAC: http://www.opensecrets.org/usearch/index.php?q=Universal+Music&sa=Search&cx=010677907462955562473%3Anlldkv0jvam&cof=FORID%3A11

* Roger Faxon, CEO EMI (Under ownership of Citigroup), Foreign. No open records of contributions

* Lyor Cohen, CEO Warner Music, Democrat: http://www.campaignmoney.com/political/contributions/lyor-cohen.asp?cycle=08

(Foreigners can't make political contributions (at least not directly to campaigns), so I looked up PAC funding.)

Re:Ex Post Facto Law?

[burris]

The questions presented by the petitioners are whether the law violates the copyright clause and the first amendment. The prohibition on ex post facto is only mentioned in the petition in a footnote in reference to a reliance mentioned by the Gov't in Eldred's oral arguments. According to the opinion below, the legislation in question doesn't .

It also interferes with the specific reliance interests Solicitor General Olson referred to in Eldred, because each Petitioner here relied on the Public Domain status of the works they performed, adapted or distributed. See Golan H, 501 F.3d at 1193.4

4 The difference between extending the term of existing copyrights and resurrecting copyrights in works that were
already part of the Public Domain parallels the distinction this Court has drawn in other contexts. This Court has, for instance,
recognized the legislature may extend the statute of limitations for criminal offenses without violating the Ex Post Facto Clause of the Constitution, but cannot revive time-barred prosecutions once the statute of limitations has run. See Stogner v. Califor- nia, 539 U.S. 607, 617-18 (2003). One of the bases for this distinction is the reliance interest that vests upon the expiration of the limitations period. See id. at 631-32. This Court has recognized a similar distinction in regard to the expiration of civil limitations periods. See id. at 632 (citing Chase Securities Corp. v. Donaldson, 325 U.S. 304, 312, n.8 (1945); William Danzer & Co. v. Gulf & Ship Island R. Co., 268 U.S. 633, 637 (1925)). If there is an important reliance interest in avoiding prosecution for criminal acts (Stogner) or civil liability for the illegal sale of securities (Chase Securities), the public’s reliance interest in maintaining the right to lawful expression should be greater still.

Also, the legislation in question protects people who created a derivative prior to restoration from being locked out entirely, from the 10th circuit opinion:

Section 514 provides further protections for reliance parties who, prior to restoration, created a derivative work4 that was based on a restored work. Under Section 514, “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 . . . .” Id. 104A(d)(3)(A). If the parties are unable to agree on reasonable compensation, a federal court will determine the amount of compensation. See id. 104A(d)(3)(B).

Seems to me that Congress anticipated this type of challenge.

Re:US-centric

[metacell]

I don't see a problem with articles about conditions in the USA, as long as they make clear they only pertain to US conditions. It only annoys me when someone assumes US conditions apply to the whole world, and I don't think articles (or summaries) here on Slashdot usually make that mistake.

I like to read a lot about US copyright law and foreign policy, because, like it or not, what they do affect things in my own country.

Re:I'm going to go out on a limb...

[AK Marc]

No, it's 8-1 because there's no evident legal basis to overturn the lower courts.

There's enough legal basis to uphold or overturn anything that makes it in front of the Supreme Court. They decide based on their personal opinion, then pull legal basis that supports their opinion, ignoring all else. That's why the results of the case can often be correctly guessed before the case is even heard by the Supreme Court. And that's also why it's so important that parties stack the courts to force their opinion on everyone, regardless of the law. No, not all "activist judges" are Democrats. All the Republican judges are as well, they just happen to "activist" in the general direction of the nutjobs that run around screaming "activist judges."

Re:Meaning of "limited"

[TheRaven64]

There have been several studies on the optimal length of copyright for encouraging people to produce new works, and I'm not aware of any that have concluded more than 15 years - most put it closer to 7. One of the interesting things about shorter copyright terms (and the reason that they are unlikely to happen) is that it shifts the balance of power towards the creators and away from the publisher, since it means that publishers need to constant flow of new material to remain relevant. With 70 years copyrights, a publisher can continue milking a work for as long as it's popular. With a 7 year copyright, they have to sell as many as they can in a short time, because after 7 years anyone can publish their own version, and they have to keep buying the rights to new works or they will be unable to compete with the public domain.

Re:Ex Post Facto Law?

[NekSnappa]

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 . . .

Whoa, wait, what? Is it just because I haven't had any coffee yet? Or does that say that someone who created a work based on something that was public domain when it was created, would have to start paying the new rights holder after copyright is restored?

That seems to fly in the face of Ex-post Facto to me, rather than display how it doesn't interfere with it.
Sigh...

Re:You have the right to be smeared.

[Internetuser1248]

'I think the puppet on the right shares my beliefs.' 'I think the puppet on the left is more to my liking.'

Like it has anything to do with republicans vs democrats. This is why your country is in such a shambles, the pretense that there is a left and right wing of in US politics and the incessant arguing over who is ruining the country. THEY BOTH ARE. This current debate is about media corporations, of course they will give money to whoever can help them make more money. Of course they don't care what label their puppets campaign under. By arguing about this you are causing the problem. STOP IT.