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

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

[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

[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.

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

[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: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: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: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: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: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: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: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: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.

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 :)