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US Supreme Court Upholds Removal of Works From Public Domain
langelgjm writes "While much of the web is focused on the SOPA and PIPA blackout, supporters of the public domain today quietly lost a protracted struggle that began back in 2001. The Supreme Court, in a 6-2 decision, rejected the argument that Congress did not have the power to convey copyright upon works that were already in the public domain. The suit was originally filed to challenge provisions that the U.S. adopted when signing the TRIPs agreement. Justices Breyer and Alito dissented, arguing that conveyed copyright on already existing works defied the logic of copyright law. Justice Kagan recused herself. The text of the opinions is available here (PDF)."
this court won't do to rob ordinary citizens of property?
Currently hooked on AMP
So, if Congress so wishes... they can apply copyright to anything in the public domain.
Shakespear here we come!
The fifth amendment prohibits the taking of private property for public use without just compensation. We need an amendment that prohibits the taking of public property for private use without just compensation.
Give me Classic Slashdot or give me death!
"Um, hello, I own the rights to 'Snow White' and all the properties of the Brothers Grimm. We need to discuss your flagrant infringing use of my client's intellectual property dating back to the very founding of your company."
Dog is my co-pilot.
How does copyrighting a previously public domain item even work? I mean, if someone copyrights, say, a book in the public domain, and I then go ahead and reprint that book, I can state that my copy is a printed version of the public domain version, and any copyright claim should be moot, since they can't prove I used the copyrighted version. Am I missing something?
Madness.
The copyright terms should be fixed at the moment a work is granted copyright. Future laws should have no power to change when an existing work is transferred to the public domain.
In these specific cases however I'd vote on the side of the court. The copyright terms granted to the works were those in effect in the country they were produced, so should be respected.
Retroactively extending copyright should be outlawed and all extensions should be revoked.
It's sort of strange that of all the international treaties, this is the one that is going to be enforced in the US. /not that I agree with it at all.
Absolute power corrupts absolutely. indymedia
The US has created a system that is terrified that someone, somewhere, is not making money in perpetuity on property they did not create.
Fiat Homos et Pereat Theos
"What do all men with power want? More power." -- The Oracle (from The Matrix).
Ideas are the most valuable commodity on the market today. Maintaining and increasing wealth is a simple matter of maintaining and increasing control over that which is valuable.
There is no principle of justice or reason which will not be trampled underfoot in the name of increasing the power of the aristocracy.
The only way to get the aristocracy to treat the rest of the world reasonably is to force them to do so. Appeals to fairness or practicality will not make them budge. The rest of us have a numbers advantage but that only helps when we are organized enough to use it. If you want reasonable copyright terms, you will have to force their hand. Count on it.
Congratulations USA! The judiciary has finally confirmed that you have sold your soul to corporations. Capitalism is just awesome, isn't it?
Seriously, WTF?
Don't we have something in the constitution about, I dunno, ex post facto laws?
What about all those people who copied or derived from formerly public domain works that are now under copyright again?
This is not a surprising decision, it actually shows consistency. The U.S. have shown many times that intellectual property is the new frontier in the modern economy and they will take any steps required to secure the poll position in this new gold rush. This decision is equivalent to "rescuing" intellectual property that was previously "lost" to the public domain. It is consistent with how the U.S. Food and Drug Administration approve "efficacious and safe" new drugs, how the US Pattent Office issue patents for obvious "inventions", how Congress extends copyright for successful artistic works (think Disney) way beyond established legal limits, and how the U.S. put pressure on other coutries to implement copyright laws similar to their own. Lawyers and judges are now guardians of IP the same way the military are guardians of external oil resources and overseas business oportunities. It's just a fact and we should get used to it.
We need an amendment that prohibits the taking of public property for private use without just compensation.
Who are you going to compensate? How are you going to figure out how much to pay who ever you compensate? If you roll back the copyright on MLK's 'I have a dream speech', are you going to mail a check for $1.21 to everybody in the USA?
This is a bad ruling, because it sets a president that allows for congress to monkey (further) with copyright. And, it seems to be a well established pattern that congress can be bought, more or less if you have money to throw about (e.g. those assholes at Disney). So basically this means that you can buy works out of public domain if you want to spend the cash it will take.
A better solution would be to throw this out, and rule that the treaty as negotiated, was unconstitutional. Would it really kill us to have to go back an re-negotiate a single treaty in order to preserve the intent of the Constitution? I think not.
HA! I just wasted some of your bandwidth with a frivolous sig!
Did anyone notice the two dissenters were appointed to the court by President George W. Bush?
As Heinlein said:
"But I will accept any rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; If I find them too obnoxious, I break them. I am free because I know that I alone am responsible for everything I do."
("The Moon Is A Harsh Mistress", 1966)
BitTorrent exists for a purpose.
Just for fun, let's get congress to copyright all of the Supreme Court's Rulings, and give them to Disney.
If they want to research something, then given them Pay For View and they can listen to Donald Duck act out their old rulings.
Maybe that would give them some insight into what they just did to the public.
Well, that's it. I no long feel guilty about copyright infringement. If you can't keep your end of the bargain, why the fuck should I?
Looks like I'll have to change my sig, too.
I explicitly release the above into the public domain.
---
Notice the word limited anyone [on the Supreme Court]?
Like a good neighbor, fsck is there
There may be a silver lining to this mess. If you read article 10.1 located here it says:
"Article 10.1 provides that computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). This provision confirms that computer programs must be protected under copyright and that those provisions of the Berne Convention that apply to literary works shall be applied also to them. It confirms further, that the form in which a program is, whether in source or object code, does not affect the protection. The obligation to protect computer programs as literary works means e.g. that only those limitations that are applicable to literary works may be applied to computer programs. It also confirms that the general term of protection of 50 years applies to computer programs. Possible shorter terms applicable to photographic works and works of applied art may not be applied."
IANAL, but does that mean that upholding the treaty also ENDS SOFTWARE PATENTS!
Why don't we call the law/treaty the DMEA "Digital Millenium Enclosures Act".
The real "Libtards" are the Libertarians!
that this has the potential to nearly *kill* teaching and learning the visual arts in the US and signatories to this treaty, right?
By the way, what if I as an visual artist, specify the copyright terms to be applied to my work posthumously in my will, and publish said will?
C|N>K
The Onion gets it right again.... Supreme Court Overturns 'Right v. Wrong'
Can anyone decide to reclaim copyright on their own work that was made public domain? That would be devastating for innovation.
Say I make something, release it as public domain. Can I then later claim copyright and demand royalties from anyone who is currently using it? Sounds like a potential for a legalized extortion scheme. Release something public domain, wait for someone to get successful using it, then demand they pay you an exorbitant fee or cease using it (dooming their company).
Sure, you can already charge fees with copyright but that is expected. Now you can't trust anything that isn't explicitly licensed. Anything public domain would be toxic since every public domain component you use would have the very real risk of destroying your company. If the author randomly decides to claim ownership, he can charge you any amount of money he wants. There's basically no value in anything that is public domain if there is anyone able to claim rights to it.
hasn't been in the Senate since 2004.
Dog is my co-pilot.
When are you people going to wake up and realize that the US government, courts, etc., hold the "Constitution" in as much regard as a piece of used toilet paper.
Jesus, people, wake up and smell the coffee - the "government" does not work for you and could not give a damn about you rights! It is bought and paid for by the 1% and run by the 0.1 %
I don't give a shit if it is the Demicans or the Republicrats. Neither works for you. The 2-party system has been completely overtaken by money.
For a supposedly smart bunch people, you really are dumb. The experiment is done. The results are that the psychopaths win.
This extends copyright protection, in the US, to works still under copyright protection abroad and brings the US in line with Berne Treaty; essentially providing the same protection to foreign authors as it does to US. Once those copyrights expire the works will revert to the public domain. SCOTUS appears to leave open the argument that continual extension of copyright would be unconstitutional; in this ruling they said Congress has the right to bring US law inline with treaties and the Constitution's copyright provision does not prevent that. Congress should have done that when they ratified the teary but didn't; and that doesn't prevent them from later doing so.
I'm a consultant - I convert gibberish into cash-flow.
This should go to show you that public opinion means *nothing* in the US. Your president is not elected by popular vote, your laws are not created by popular opinion. Welcome to your corporate dictatorship.
Your legal system is as hilarious to watch as your government. Put the two together and it is just comedy gold.
Is your country currently accepting refugees from our legal system?
Despite that the copyright and patent clause is the only enumerated power that has a preamble, the Supreme Court has interpreted this preamble "To promote the Progress of Science and useful Arts" as nonbinding. It has chosen to defer to Congress in determining what "promote[s] the Progress of Science and useful Arts".
Just because one aspect of a work has a copyright doesn't mean it can't also have a patent. Every work of authorship consists of expression of an underlying idea. The expression is subject to copyright, and the idea may be subject to patent. In the case of a computer program, the program itself is a copyrightable literary work, and the transformation process it implements may be the subject matter of a patent.
By the way, what if I as an visual artist, specify the copyright terms to be applied to my work posthumously in my will, and publish said will?
Then that's a delayed-effect copyright license analogous to the "Founders Copyright" that Creative Commons once promoted.
I think most folks have missed the sublty in the decision and the dissent. As my submission on this topic didn't make it, I'll just repost my view here.
Although the jist of the argument is if congress has the right to restore or extend copyright protection to works that were prior legally in the public domain in the USA before the treaty was in effect to come into compliance with the treaty, that wasn't the whole argument. The Berne Convention and the Uruguay Rounds allowed for a country to have restricted terms for works that had restored copyright to account for any disruption pulling things out of the public domain might cause. Apparently, the US congress decided to just do a blanket restoration of rights instead of any restricted terms which were allowed by the Treaty (specifically article 18 of the Berne Convention).
The subtle legal argument was that if by granting blanket restoration of rights congress overstepped its authority granted by the constitution by not restricting the rights as much as was allowed, but still compliant with the convention. In a disenting opinion authored by Justices Breyer and Alito voices the view that this legal implementation "does not serve copyright's traditional public ends, namely the creation of monetary awards that motivate the create activity of authors", but only grants its restored copyrights only to works already produced. Whereas just providing for minimal restored rights allowed by the treaty would still promote the activity of future authors by giving them the global opportunities for monetary rewards that would come by international copyright harmonization.
It's subtle, but an important distinction that, unfortuantly, seems to have been botched by the majority of the court (in my opinion). It's clear to me that the court generally agrees that congress has this specific power to change copyright in the context of this treaty (under the promotion of authorship provisions), but disagrees on if Congress actually stepped across the line on this specific implementation law. It isn't about compliance with an international treaty in general (the Parent/poster didn't make this mistake, but several other posters did), as it is certainly the court's perogative to say that the signing the treaty was against the consitution, if that were the case.
And then 2 years later they took it away by ratifying the 1st amendment.
... when the Bible, Torah and Koran all get copyrighted...
Check your premises.
Just abolish public domain altogether and auction off all the world's works to the highest or most connected bidder. I hear the Bible would bring a pretty penny.
If Slashdot were chemistry it would look like this:Cadaverine
> Shouldn't that make this an Ex Post Facto law? Again, making it unconstitutional?
They've already restricted that to criminal law. And even if they did use that, they would say only that your behavior before the law was changed didn't count, but that you had best obey it after the change.
Why does this remind me of William S Burroughs comment (From "words of advice for young children").
"Beware of Whores who say they don't want money, The hell they don't.
What they want is more money, Much More........."
da da da dum indeed.
And once again, they remind me why I should have absolutely no moral qualms about committing copyright infringement, since clearly there is no question of ethics in the law itself.
Go ahead and mod me down, but that doesn't change the fact that playing by the rules when the rules are stacked against you is still a suckers' game.
"Does Congress have the poer to do this" then, yes, yes they do. It's pretty clearly spelled out.
What you need to do is continue to bitch at every Representative you can, always.
The Kruger Dunning explains most post on
...then why aren't we charging copyright holders Property Tax?
What about the Bible. Who gets the copyright on that?
What America are you living in? The constitution has been bypassed. It's pretty much irrelevant now.
Deleted
Can anyone tell me why these two clauses in Article 18 of that same convention seem to say Congress cannot, but they think they should?
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
What am I missing?
SCOTUS is supposed to overturn laws that are unconstitutional.
They are NOT supposed to overturn laws just because they are bad.
SCOTUS ruled that congress putting public domain items back under copyright is NOT unconstitutional... because it isn't.
You may not care for the outcome, but the Supreme court isn't there to prevent Congress from doing stupid shit. The only people you have to blame for this is Congress and whichever President didn't veto it.
paintball
Disney literally built their empire on PD works. Most of their best-loved and most successful movies come from work that predates copyright--their original classics (Snow White, Pinocchio, and Cinderella), the films that sparked their revival in the late 80s/early 90s (The Little Mermaid, Beauty and the Beast, Aladdin), and many others.
FUCK THEM, and the lawmakers they buy. Read that old paper you swore to uphold: Article I, Section 8: "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"
Key words there:
Fuckers, it's not even halfway down the page. PD did exactly what it was supposed to do: things that weren't in copyright were available for (in this case) Disney to do wonderful things with. Now, art will be relatively inaccessible from 1928 on.
Dear Slashdot: next time you want to mess with the site, add a rich-text editor for comments.
n/t.
On the other hand, two can play that game. Whaddaya say that we all get together collectively and decide that all that crap the RIAA and MPAA keeps sputzing on about would really be better for everyone if it were simply "community property". Then by the (appropriately expanded and annexed) notion of "Eminent Domain" we simply appropriate it for the community-- legally, of course-- you know, the American way-- and then we'll all own the copyrights on it and nobody will have to worry about anything else the RIAA or MPAA ever says or does again. Which will leave them free to pursue more lofty pursuits, such as beating up homeless people or kicking disabled people in wheelchairs or something. I mean, it really would work out better for everybody that way.
No ex post facto laws eh?
What an amazingly wonderful social order the west is, when its governments are able to rob citizens blind and then blame each of their independent internal departments, none of which are singularly responsible for said robbery.
Get off your high horses vis a vis China, Islam, South American socialism etc. Your system is more broken than anything.
...putting public domain items back under copyright is NOT unconstitutional... because it isn't.
Well, at least two justices disagree with you, so it's reasonable to argue that they made the wrong decision here.
This is what the consitution has to say regarding copyright:
The Congress shall have 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.
To me this means that any copyright law which does not promote the progress of science and/or useful Arts is unconstitutional. So you would have to make the case that moving these works out of the public domain accomplishes that.
That's not how ex post facto works. Ex post facto would be:
Make something "retroactively" illegal, and as a consequence of making the said thing illegal, convict you of a crime for something that was legal to do when it was done.
Kind of like how slavery is not unconstitutional. SCOTUS is usually on the wrong side of history because of this very narrow interpretation of its duties.
Something that was once in the public domain, and legal for anyone to copy, is now not in the public domain, and not legal for anyone to copy. That sounds like it fits the definition of ex post facto to me.
"by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
Wouldn't this mean that the rights should not be able to be transferred? For instance, wouldn't this mean it's Unconstitutional for the RIAA to have the rights to something they did not write or discover. And that said rights should only belong to the author and inventor of said writings/discoveries?
Only if you can be punished for the copying that you did whilst it was still in the public domain.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
No. This would be ex post facto: Something that was once in the public domain, and legal for anyone to copy, and you copied it when legal, say, in 1990. Congress passed a law in 2012 that not only made it illegal to copy it in the future but retroactively made your 1990 act illegal. That would be unconstitutional. That is not what happened. That said, there are constitutional questions (just read the dissent).
I swear, if I had mod points....
Shiny. Let's be bad guys.
Did anyone notice the two dissenters were appointed to the court by President George W. Bush? if yes reply me
Hosur properties for sale
SCOTUS ruled that congress putting public domain items back under copyright is NOT unconstitutional... because it isn't.
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.
1) It doesn't promote Science or useful Arts. It subtracted from them, by taking something out of the public domain.
2) If something can be placed back under copyright, it's not a limited Time.
That's unconstitutional enough for me.
Where'd you get your Constitutional Law Degree? A Cap'n Crunch Box?
Do the words Ex Post Facto mean nothing to you?
It's bad enough that Congress has found a loophole around it, by some tricky tabling of proposed laws they can't force through this term, only to bring it back again and again until they get the right numbers to pass it. Then they back date it to when the thing was first proposed. That's how Mickey Mouse got to keep his copyright protection.
God Damn how do we fire these Goddamn idiots in the SCOTUS?
Damn 6-3 (and one of the three had to abstains because she worked it as a lawyer!
I wonder how much Disney and Sony and Murdoch paid them?
Maybe Murdoch had tapes on their cell phones?
You are not merely wrong, but do not understand the basis of the Constitution. The Constitution exists to PROHIBIT the Federal government doing ANYTHING that it doesn't SPECIFICALLY empower it to do. You don't have to find a place in the Constitution where it says the Federal government CANNOT do X. You only have to establish that nothing in it that says it CAN do X.
The relevant empowering section in this case reads:
"The Congress shall have 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"
It means what it says. A law specifies how long copyright lasts - the time MUST be limited. Then when the copyright runs out, the work passes into the public domain. There is no Constitutional basis for then magically re-instituting copyright after it has run out, by passing some new law after this event which WOULD HAVE resulted in a longer period of copyright, had the new law existed at the time the work was originally published.
In fact the Constitution specifically says "No Bill of Attainder or ex post facto Law shall be passed." The definition of Ex Post Facto is "Formulated, enacted, or operating retroactively."
I realize that the Constitution is no longer used as anything more than toilet paper nowadays. BUT SOME OF US NOTICE. Yes, we notice.
Come on... I've been saying this since SOPA came up...
"Look at this hand, pay no attention to the other"
Did you really think that this was about SOPA? No. I guarantee this was about things like this copyright nonsense and anything else the Supreme Executolegislative clusterfuck in D.C. can ram through while we're all focused on an insane law that has everyone up in arms, but which the politicos already know won't get passed. But they want the conflict, the headlines, so they can quietly slip in their real agenda under the radar. Bush did it over, and over, and over, and over again. This is no different. They're using the system, the media, your own sense of right and wrong against you (attacking SOPA in this case, to distract).
You cannot win unless the system changes. It is rigged, and until it gets bad enough that something drastic changes, there is a long ride down a very dark and greasy slip n' slide to hell.
-
They did that already once in Denmark. They took over copyright on Tarzan and then forced a pre-existing character, Gummi-Tarzan, to change names to "Gummi-T"
Beta is broken and the link to classic doesn't work. Stop wasting our time or there won't be anybody left here.
Not transferrable and owned by an actual person, that would be interesting.
Mod up!
Comparing corruption in the Peruvian government to corruption in the US government is like comparing corruption at Dollar General to corruption at Wal-Mart. Dollar General is dirty and obvious. Wal-Mart is slick and under the radar, but a hell of a lot richer.
The US government is absolutely every bit as corrupt as the Peruvian government, only they do it on a scale that the Peruvian government can only dream about.
For christ's sake, the US government has been at war with somebody, somewhere in the world, for every single year of the past 100 years. We are talking about the most expensive, most powerful government AND world empire (with military bases in some 150 countries) that has ever existed. The scale alone tells you all you need to know. All governments are corrupt, and logically, bigger governments can afford a hell of a lot more corruption.
No, but if someone got the work as public domain (with a public domain notice attached) and were never told that it had magically become NOT public domain, then sent someone else a copy (believing it to STILL be public domain), that is about half-way between entrapment and ex post facto. This gets even WORSE when businesses (big or small) USED these public domain works as part of their identity (logos, etc) or murchandise (t-shirts, pins, stickers, emblems). Imagine if snow white, pocahontas and cinderella suddenly became owned by some guy in Florida, Disney would be SCREWED if they continued selling those before finding out.
How the hell do they expect to inform every person that has a copy of the ex-public-domain works and tell them "By the way, your logo is now illegal because the clouds you used in the background are now copyrighted".
And in the end, we are going to find out what truly is valuable, won't we. Sometimes I think, our luck that Math, chemisty, biology etc, etc, is public domain and available to everyone (mostly). And then I realize, that a lot of stuff, which is not public domain, can be easily forgotten.. Don't get me wrong, I think copyright is a way to reward innovation, ingenuity, altruism and creative genius but unfortunately greed, selfishness etc as well. Somehow, the best reward is when many can benefit from something, for good. What I can't stand is corporate America trying to make tools of everyone. Do these "people" (generalizing) even realize that "man" is not entirely retarded and that "man" created long before an America was thought up? I bring this out publicly, due to the fact that some things must be said, maybe, or maybe not. Either way, no bad blood intended here. These days, I don't even want to have any copyrighted works around in my flat. I throw away most of it because in all honesty. A large amount of it holds no value for me, at all.
Perhaps you don't really understand licensing. The copy you had is a public domain copy and you are legally entitled to copy it. No one can retroactively steal your right to access your public domain copy as you see fit, deploy it upon multiple devices, share it with friends, make backups and sell it to the public. So they enacted laws that stole your saleable product, the product being a reproducible version of that content, any costs you had in initially obtaining it, any costs associated with storing and preserving it and any enhancements you made to the quality of it.
So as the owner of that particular licensed saleable product you can sue to recover your investment. Where they failed was in assigned value to the copy, it's intrinsic storage medium, the measurable qualities of the copy and all costs associated with maintaining it.
Chaos - everything, everywhere, everywhen
Kind of like how slavery is not unconstitutional. SCOTUS is usually on the wrong side of history because of this very narrow interpretation of its duties.
Much as you would like it to be, it's not the job of the Supreme Court to write the Constitution, merely to interpret what's already in it.
Slavery was perfectly constitutional until the passage of the 14th Amendment. Now it isn't.
It's that simple.
Once in the public domain, it's always in the public domain. We do not recognize any claims contrary to that.
Well, at least two justices disagree with you, so it's reasonable to argue that they made the wrong decision here.
Logical fallacy: appeal to authority. Oh, wait...
To have a right to do a thing is not at all the same as to be right in doing it
Kind of like how slavery is not unconstitutional.
That just shows the limitations of the US constituion. It is not the Ten Commandmants handed down by God to Moses as some people here seem to think. It's a human created document and therefore subject to change and reinterpretation.
To have a right to do a thing is not at all the same as to be right in doing it
What an amazingly wonderful social order the west is, when its governments are able to rob citizens blind and then blame each of their independent internal departments, none of which are singularly responsible for said robbery.
Get off your high horses vis a vis China, Islam, South American socialism etc. Your system is more broken than anything.
I'd mod you insightful... except you aren't.
So how long will it take Congress to sell the copyright to the works of Shakespeare to some media company?
Perhaps they'll try to sell the copyrights associated with the works of da Vinci?
Or will they have the decorum to only sell the copyright of things created by Americans, like the works of Mark Twain?
I agree this is a bad practice, however neither of your points is flatly true. The first is arguable---after all, the very logic behind copyright is that keeping something out of the public domain can be beneficial. One could certainly and reasonably argue that there may be cases in which removal from the public domain has a similar benefit. Your second point is only true for particular laws, it would be quite possible that restrictions on retroactive copyright (or whatever one wants to call it) could ensure that it is only for a limited time.
There certainly are problems, and I don't see how yanking works out of the public domain could possibly be a good idea, but I also don't see that it's inherently unconstitutional. Unfortunately.
Public domain does not have or require any such agreements. There is no limit to copying, so there is no necessity to come to any sort of agreement between you and the author. So the ability to copy is dictated solely by law (or lack thereof) and not any sort of license agreement. It just happens that there is now a law that limits your ability to copy some works that used to have no such law protecting them.
tl;dr Laws trumps Licenses
(ps. I actually agree with the dissenting opinion of the court.)
No, the distinction is, if you used a work that was considered to be in the public domain last year, but this year it was decided that it was not, you cannot be charged with unlawful use for having used it last year.
Gamingmuseum.com: Give your 3D accelerator a rest.
What if I modified a public domain work, and asserted a copyright of my own on it? Will I still have the copyright? A "no" answer would seem to invoke ex post facto.
(Modified public domain works may be copyrighted: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-b.html)
All my liberal friends think I'm a conservative, all my conservative friends think I'm a liberal.
I agree with you that this is not a good law, and I'm certainly not pleased with the direction that copyright law is heading. However...
It means what it says. A law specifies how long copyright lasts - the time MUST be limited. Then when the copyright runs out, the work passes into the public domain. There is no Constitutional basis for then magically re-instituting copyright after it has run out, by passing some new law after this event which WOULD HAVE resulted in a longer period of copyright, had the new law existed at the time the work was originally published.
This is a very specific and very narrow interpretation of the Constitution that you are making. The power given by the quote you cited is much broader than just allowing a specific law. In addition to the powers specifically granted, Congress has (and must have) the power to employ laws necessary to achieve those goals, even if they're not specifically called out. Furthermore, there's no legal requirement that Congress make particularly wise or effective laws. As long as the law reasonably "promote[s] the Progress of Science and useful Arts," it's probably Constitutional, even if there would be a better way to achieve that goal.
I'd certainly like to shorten copyright terms (although this is a more complicated issue than it's often given credit for), but it's not hard to imagine a retroactive copyright law that does qualify as providing "limited Times." A 70 year term that takes effect an arbitrary time after creation is technically a limited time. One could argue whether it's truly limited, but you could add a limit on the time before the start of the enforcement to achieve that.
It's already been established that extensions are legal as long as the terms are limited at each point. This is unfortunate, but I think the logic is correct. This is something that needs to be corrected at the Congressional level.
Slavery was not unconstitutional until the passage of the 13th amendment. The "narrow interpretation" of the SCOTUS's duties is because, in fact, they are narrow. The Constitutional is the law of the land. Having any branch of the government assume powers for itself is authoritarian. The fact is that when the Constitution was created, the sentiment of a large portion (and perhaps even the majority) of society was that slavery was acceptable. If you want a bunch of wise elders (or "wise latinas") making laws for the rest of us, a democracy (or republic) is not the kind of government you're looking for.
Gamingmuseum.com: Give your 3D accelerator a rest.
The law in fact allowed for the continued use of material that had been used before the law had been passed until being informed by the rights holder of the new status.
Logo's are protected by trademark law, not copyright law, so are a completely separate issue. And Disney's retelling of the stories of Snow White, Pocahontas and Cinderella are not exact copies, so would also be a separate issue.
(I must be in an optimistic mood this week.)
That it's Congress' right to set the timing to whatever, was pretty much settled by Eldred, but this takes it to new degree. In Eldred we learned that Congress can change the expiration date after the work is already published; today we learn Congress can change the expiration date after that date has already arrived. The issues of fairness and the sanity of time-travel really are off the table as far as the Constitution / SCOTUS is concerned, so if you don't like it, then you have to persuade Congress.
That's interesting, because the last time copyright durations were extended, I always assumed that even if we corrected this corruption, the correction wouldn't be retroactive. Something with a 90-year countdown going, would remain counting down from 90, even if copyright durations got amended to 14 years or something like that.
But SCOTUS is saying it doesn't have to be that way. If Congress can take works that are currently public domain and make them copyrighted, then Congress can take works that still have 76 years of copyright and say they're now public domain.
Congress can really do pretty much anything it wants with copyright, short of literally using the word "unlimited" in durations (since that word's antonym is in the constitutional clause that gives them the right). Should the people ever start voting for a Congress that will reform things, that Congress will have the legal power to give people what they want.
In an unrealistic extreme example, if you (and by you, I mean everyone) vote for 14 years copyright this year, Congress can pass it in January and all works published prior to 1999 could instantly become public domain. Not that it would happen, but if it did, SCOTUS would support it.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Except it doesn't. The creator has already been paid to create the work. Going back and paying him (or her) again isn't going to magically create more works. Others will probably make the arguments for me that long copyright (and patents) can actually inhibit progress, so I'll skip those. This law wasn't intended to promote progress. It was intended to line some Congressman's pockets with "campaign contributions."
No, but if someone got the work as public domain (with a public domain notice attached)
Um, what? Public domain works need no notice, and until recently anything without a copyright mark and date was considered public domain (I wish they would reinstate that requirement).
Free Martian Whores!
Read Men in Black: How the Supreme Court Is Destroying America by Mark R. Levin http://www.amazon.com/dp/1596980095/ref=cm_sw_r_tw_dp_XJegpb0XD3NRX via @amazon
That's only because you don't know what ex post facto means. "No Ex post facto laws" does not mean "the criminal code can never be added to" or "an act that was legal at one point shall forevermore be legal". It means "if it was legal when you did it, you can't be punished, even if it's made illegal later."
If you copied the public domain work in the past, you're fine. If you copy the same (now copyrighted) work now, that's illegal.
You can make derivative works from things still under copyright. Derivative works kind of have this multiple-copyright thing going on. The part of the work which represents your creative contribution is copyright to you. The portion which is either public domain, or copyrighted by someone else, is public domain or copyrighted, respectively.
So, if you created a derivative work of one of these works which *were* public domain in the US, but now have had copyright re-instated, you would probably have to stop distribution of the work (unless you can enter into a license with the holder of the copyrighted work which your derived work incorporates), *but* you would still have copyright on your original portion of the derived work.
This happened with student loans as you'll remember. There's an entire generation of students who took out loans which were bankruptable under the same conditions as any other debt.
Then Congress retroactively re-wrote those laws, leaving those students with newly non-dischargeable debts.
SCOTUS said- they can do that because it's not taking away anyone's civil rights.
Congress can do it. It's your job to vote your congresspig out of office when he does.
Oh that's right. you LIKE your congresspig. , it's that other guy's congresspig that has to go.
Do as I do
Senator Franken is my congressman. Better believe I agree with him on almost everything. His vote is a fucking non-starter from me on account of SOPA and PIPA . You're gone Franken. Too bad. Other than that, I thought you were one of the best legislators I've seen in a long, long time.
In reply to 1), to play the devil's advocate, you could make the same argument about *all* copyrights/patents, and yet, the Constitution takes the view that the exclusive Rights promotes that progress.
2) Over the years, I've been very much in agreement with most /.ers that Congress is going overboard in extending copyright terms. I still think that. However, in the case in question, the issue was simply that the U.S. had a discriminatory system that granted longer copyright terms to U.S. authors (I use the term loosely since not all copyrightable works are writings, of course) than it did to works from authors in other nations.
Is such discrimination really fair? I don't think so.
This law was intended to make the copyright term for domestic and international copyrighted works be the same. I can't fault Congress for that. That seems reasonable.
I just happen to think that all copyrights, for both domestic and international works, should be shortened to more reasonable lengths.
I will add this: the SCOTUS ruling does seem to open the door to Congress pulling any old thing out of public domain that it wishes to - the Greek Myths, Grimms' Fairy Tales, The Bible, Mark Twain, William Shakespeare, whatever. That worries me.
No he's right. Our system is totally broken. Outright copyright theft and whatever system of making money in that system would be better than what we have now. And that's saying a lot.
That is not entrapment or ex post facto. You know how IT guys feel watching a computer hacking scene on a TV show? That's how lawyers feel reading constitutional law debates on Slashdot.
When was the last time you had to pay off the cable guy on top of your normal payment? when was the last time you had to slip an extra hundred to get your water turned on?
yesterday - in the restaurant. i routinely have to tip waiters to get decent service.
Suppose you set up a publishing run of a million copies of a work that is in the public domain and Congress pulls it back out of the pubic domain. You are no longer legally allowed to finish the printing, but you've already sunk the setup costs. It's also dubious whether you have the legal right to redistribute the books you have already printed.
IMHO, that's a clear fourth amendment violation.
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God Damn how do we fire these Goddamn idiots in the SCOTUS?
The Supreme Court justices are appointed for life. The only way to fire them would be to kill them. As much as I disagree with them on this and other decisions, that doesn't really justify killing them off. Besides, their replacements would probably be just as bad.
But, didn't you know? Corporations are "actual people", too!
As long as the law reasonably "promote[s] the Progress of Science and useful Arts," it's probably Constitutional
How is reinstating your lost copyright supposed to make you want to do more creating, rather than sitting on your ass collecting license fees?
I'd certainly like to shorten copyright terms (although this is a more complicated issue than it's often given credit for)
Complicated how? The only complication I see is campaign contribution bribery.
Free Martian Whores!
"Well, at least two justices disagree with you, so it's reasonable to argue that they made the wrong decision here."
Careful with this kind of argument. Want someone to tell you that Lawrence v. Texas was wrongly decided with that same reasoning?
SCOTUS ruled that congress putting public domain items back under copyright is NOT unconstitutional... because it isn't.
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.
1) It doesn't promote Science or useful Arts. It subtracted from them, by taking something out of the public domain.
2) If something can be placed back under copyright, it's not a limited Time.
That's unconstitutional enough for me.
That is a fairly good summary of the dissenting opinion:
"The statute before us, however, does not encourage anyone to produce a single new work."
"At the same time, the statute inhibits the dissemination of those works...[which prohibits] spreading knowledge throughout the world."
He also quotes the 1909 congressional author of the Copyright Act:
"The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly."
The monopoly was actually described as 'evil'!. It should be fairly obvious to anyone that hasn't been bought off by 'Big Media' that lifetime + 70 years for a monopoly is far, far outside the original intent of anyone involved in the original copyright laws.
One can hope that someday there will be a court that recognizes that in order for a work of art, movie, music, etc.. to promote the "Progress of Science and .... Arts" that it at least needs to be available for the public to build upon within the same generation in which it was created.
(minor example)
Just think of how much more the public could have enjoyed the Star Wars universe if its copyright had expired in say...1985, and there were spinoff movies created by a wide range of (maybe more) talented directors. The time to have a copyright expire is most beneficial to the public when the public still cares about that art. Even a 10 year copyright is pushing it for the arts.
This is no different than if a current document protected by copyright were passed off as a public domain document by a third person. The onus on assessing the right to copy lies with the person making the copy.
It's completely different. They did assess the right to copy, he even stated that "No, but if someone got the work as public domain (with a public domain notice attached)".
Show me where it says anywhere in the relevant statutes that you must constantly recheck the right to copy every time a new copy is issued, just in case it has been removed from the public domain.
The opinion somewhat addresses that, but the excuse is roughly that congress deemed that coming in line with other nations copyright serves to support our local copyright interests, which is sort of in line with the original intent. Not sure I'm buying it, but seems at least plausible.
You can't just assert that it doesn't. The calculation really is a complicated one. The Constitution doesn't say anything about what is a reasonable profit from a work, so you can't make a flat argument that the author was already compensated. The whole point of copyright is that it creates some confidence that there is a financial profit to be obtained through creative work, thereby encouraging further creation. Maximizing the effectiveness is both (1) difficult and (2) not the job of the Judiciary.
While you can argue whether the present law is a good one, it doesn't seem at all obviously unconstitutional. Congress is granted the power to create copyrights with very few specific restrictions on that power. As far as I can tell, the copyright that is being imposed on the public domain works is still limited in time, so it doesn't obviously violate that principle.
This may well be an example of the fact that not every bad law is unconstitutional.
It can encourage creation by increasing the ability to reap profits from works, for one. In fact, this is essentially the whole basis for copyright.
If you can't think of any complications, I'll ask you this. What is the ideal copyright term? Why? What effect, in detail, will this have on authors, publishers, and consumers? How will it affect works created by individuals? How about by businesses? Is it reasonable for fiction markets, magazine markets, online publication, and technical works? Etc. The point is, it's a tricky balancing act.
The courts can't just jump in and rule something unconstitutional because they don't think it's the optimal solution.
During the Cold War, yes, the US did stupid things and at the very least have backed tin pot dictators who said the right mean things about the USSR. (And, though it doesn't excuse us, the USSR tried the same in a few places.) But when's the last time that happened? Don't tell me about international lobbying to pass treaties you don't like - of course that happens - but actual "installed a tin pot dictator," a coup in the streets, all that good stuff. To the US's credit, it pretty much backed off the vast majority of such dictatorship backing after 1989. No more funds for Angolan civil wars. We didn't particularly prop up Suharto. Hell, we were fighting our old buddy Saddam in Iraq in mere 1991.
The closest you can argue is maaaaaaaaaybe Karzai in Afghanistan, but eh, he's running a partially free state at least for now.
It can encourage creation by increasing the ability to reap profits from works
How can I reap a profit from my work after I'm dead?
What is the ideal copyright term?
I'm not sure there's an "ideal" term, but more than a lifetime is far too long. I've heard some say five years, but that's far too short; I'm about to have a book printed (I already have it on BitTorrent in PDF form), and it was mostly written about then.
Patents only last for twenty years, and it takes that long for some innovations, such as new drugs, to pay back the research investment, and it seems to be working OK (patent law has completely different problems from copyright). Twenty years was the standard for copyright for over a century, I'd say somewhere between 20 and 40 (40's a little long IMO).
What effect, in detail, will this have on authors, publishers, and consumers?
Authors: a great deal. Art is like science and technology, as everything new comes from the old. Imagine how technological innovation would be stifled if patents lasted as long as copyright? Well, that's how artistic creativity is being stifled. If yesterday's copyright length were as long as today's, Disney wouldn't have been able to film half their animations; the stories were in the public domain.
Publishers: Publishing companies will likely be a hing of the past in fifty years or less, regardless of copyright length. Before the digital age, there's no way a writer could have made any books without a publisher; you needed presses, typesetters, etc. That's all automated now, all a publisher does is print the book on paper or less, if it's in digital form. Today all an author needs is a print house. If dead tree books die, so will book publishing. Already the music publishing companies are completely unneeded by musicians and music listeners; in the past it took extremely expensive studios to record and expensive machinery to produce the master that the LPs were pressed from; it was an industrial operation. Today the musician's instruments are the most expensive part of recording. It will be a while before Hollywood is obsolete, since blowing up buildings and crashing cars ain't cheap, but it won't be long before photorealistic CGI is cheap and good enough to render those explosions and car wrecks.
Consumers: I see nothing but good for the consumer.
How will it affect works created by individuals?
It will only affect individuals, as explained above.
How about by businesses?
If by "businesses" you mean "corporations", corporations can't creat art. Only the humans they employ can. Corporations should have no part in the creative process, except as a customer (somebody has to write the ad copy and film the commercial).
Is it reasonable for fiction markets, magazine markets, online publication, and technical works?
I can only think of one work of fiction that a 40 year copyright would help cause an author to create, and that's Asimov's Foundation trilogy. When he first published it, the publishing house failed to get it properly marketed (no internet back then, marketing was expensive) and Asimov didn't get a dime until Doubleday licensed the rights ten years later. But then, there is no gurantee of profit from any endeavor. Most books are out of print in twenty years. Magazines? Magazines are only for sale a short time; a magazine publisher wouldn't care if the copyright were twenty years or a thousand, since they're only on the shelf a month at a time. Online publications? No effect whatever; slashdot is an online publication, and copyright doesn't seem to affect their bottom line either way. Technical works? Are you kidding??? What good is a ten year old textbook on physics or programming? One of my instructors in college groused once that by the time a textbook is printed it's already out of date.
The courts can't just jump in and rule something unconstitutional because they don't think it's the optimal solution
That shoud be true, bu
Free Martian Whores!
I know that, that was just to weed out the people that would complain that there was no way to know it was public domain.
I never said it WAS. I said it would be similar to something in between (taking a few, but not all, qualities of the two and combinign them into something new).
3) The Right is secured to someone other than the Author or Inventor...
Just because computer programs MUST* be protected as literary works doesn't mean that the processes embodied in a literary work MUST NOT also be protected as inventions. For example, ISO can publish a copyrighted literary work describing the process of MPEG-4 video decoding, but that doesn't eliminate the patents.
* All-caps modal verbs are used as described in RFC 2119.