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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.
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?
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.
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
because the assholes at google have not yet waken up to the fact that the 'magic' aura of the untouchable has faded long ago from the world of i.t., internet, and silicon valley. and they need to fight to defend themselves from the dinosaurs, who have just woken up to what internet was doing in the last 5 years and got into offensive.
Read radical news here
hasn't been in the Senate since 2004.
Dog is my co-pilot.
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.
Don't the assholes at Google have way more money than the assholes at Disney?
Google has a nice market cap, but otherwise it isn't necessarily wealthier than the media corps. Consider revenue; Google had $35.76B of revenue during the previous 12 months. Disney alone had $40.89B. The combined revenue of Time Warner, Disney, Sony and DreamWorks was $159.53B.
Incidentally, those media names figure prominently at OpenSecrets as big contributors. DreamWorks in particular punching well above its weight. About 95% of it goes to one party. It is left as an exercise to the reader to discover which one.
Lurking at the bottom of the gravity well, getting old
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.
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.
...then why aren't we charging copyright holders Property Tax?
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.
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.
...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.
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).
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.
About 95% of it goes to one party. It is left as an exercise to the reader to discover which one.
Obviously the party that least believes in property. One party doesn't need paying off due to automatically agreeing to any legislation that helps the rich and is good for business and one party needs a lot of bribing to do what helps the rich and hurts their main constituents.
Just a shame that American politics is so dependent on money that a party has to put aside their core beliefs to get anywhere.
https://en.wikipedia.org/wiki/Inverted_totalitarianism
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.
Morals have nothing to do with laws or legality. For example, it was moral for Rosa Parks to oppose segregation laws by sitting in the front of the bus, no matter how illegal it was for her to do so. However, in the case of copyright infringement, you have to ask yourself, is it moral that I infringe copyright? Is there an underlying issue of right vs. wrong about making an unauthorized copy of an author's work? Since we have fair use rules - or what is left of them - I would have to say there is no underlying immorality about making an unauthorized copy in and of itself. The other side is that making unauthorized copies and selling them without regard for the author is immoral.
The issue is at what point does making an unauthorized copy change from being moral to being immoral. That is the point at which laws should come into play.
who prays for Satan? Who in 18 centuries has had the humanity to pray for the 1 sinner that needed it most? ~Mark Twain
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".
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
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.
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.