Supreme Court Says Congress May Re-Copyright Public Domain Works

[carld]

Originally Posted by wizwor

I contend that abuse of copyright is the root cause of copyright violation. Copyright was intended to ensure the creator of IP a fair profit on their effort. When the right to a fair profit entends beyond the creator to an industry and spans generations, people feel justified in ignoring the law.

I think it's just people wanting something for nothing.

Originally Posted by SteveEisenberg

Then we'd be hearing that young people, interested in music of the past couple decades, respect copyright, while the elderly are known for massively downloading Deanna Durbin movies.

Maybe they pirated it several decades ago, and don't need to do so again?

[sabredog]

Originally Posted by Kali Yuga

E.g. Gone With the Wind is still under copyright in the US, but is in public domain in Australia, much to the irritation of the Mitchell estate.

Copyright law in Australia is not affected or over influenced by large corporations.

Originally Posted by carld

I think it's just people wanting something for nothing.

I think that it is easy to over-simply the issue of piracy. After all, the crime ranges from someone offering a single copy to a friend to illicit and very profitable businesses. Something tells me that the motivations are just as varied.

[spellbanisher]

Originally Posted by Andrew H.

I don't see how. If extending copyright from life+50 to life+70 doesn't violate the copyright clause, I don't see how putting certain PD works in the life+70 category would violate it.

And this decision doesn't burden the 1st Amendment any more than the copyright clause already does.

I didn't say it violated the copyright clause; I said it made a mockery of it. The purpose of the copyright clause is to give private incentives to further the public good, specifically, to incentivize creation of new content that will eventually be in the public domain. This is affirmed by the House Report on the Legislation that implemented the Berne Convention in the US:

Under the U. S. Constitution, the primary objective
of copyright law is not to reward the author, but
rather to secure for the public the benefits derived
from the authors labors. By giving authors an incen-
tive to create, the public benefits in two ways: when
the original expression is created and . . . when the
limited term . . . expires and the creation is added to
the public domain. Id., at 17

http://www.law.cornell.edu/supct/pdf/01-618P.ZD1

There are several defenses, however, for the Congressional Power to extend copyright or remove works from the public domain. One defense essentially is that the copyright clause is so broad as to give virtually unlimited leeway to congress in how it tries to execute the clause, with the only restriction being that congress can't explicitly make copyright perpetual. This I think, however, makes a mockery of the clause; if congress continually retroactively extends copyright, then the copyright clause for all intents and purposes becomes a joke. I'm not saying this is an incorrect interpretation, just that this interpretation renders the clause meaningless.

Another defense is that there is precedent for the retroactive extension of copyright dating back to the first congress. However, I think Justice Stevens effectively dispels that defense:
http://www.law.cornell.edu/supct/html/01-618.ZD.html

Congress also passed the first Copyright Act, 1 Stat.
124, in 1790. At that time there were a number of maps,
charts, and books that had already been printed, some of
which were copyrighted under state laws and some of
which were arguably entitled to perpetual protection
under the common law. The federal statute applied to
those works as well as to new works. In some cases the
application of the new federal rule reduced the
pre-existing protections, and in others it may have in-
creased the protection.7 What is significant is that the
statute provided a general rule creating new federal rights
that supplanted the diverse state rights that previously
existed. It did not extend or attach to any of those
pre-existing state and common-law rights: That congress,
in passing the act of 1790, did not legislate in reference to
existing rights, appears clear..
.
Congress set in place a federal structure gov-
erning certain types of intellectual property for the new
Republic. That Congress exercised its unquestionable
constitutional authority to create a new federal system
securing rights for authors and inventors in 1790 does not
provide support for the proposition that Congress can extend
pre-existing federal protections retroactively...

Moreover, members of Congress in 1790 were well
aware of the distinction between the creation of new copy-
right regimes and the extension of existing copyrights.
The 1790 Act was patterned, in many ways, after the
Statute of Anne enacted in England in 1710.

In other words, the Copyright Act of 1790 created a new regime of Federal Copyright; it did not extend the existing regimes of state copyrights, and therefore, cannot be interpreted as a retroactive extension of copyright.

Still another defense is that congress has repeatedly retroactively extended copyright in the past, and therefore it has the constitutional authority to do so. Stevens also shoots that argument down quite effectively:

as our decision in INS v. Chadha, 462 U. S. 919 (1983), demonstrates, thefact that Congress has repeatedly acted on a mistaken
interpretation of the Constitution does not qualify our
duty to invalidate an unconstitutional practice when it is
finally challenged in an appropriate case.

Still another defense, and the one that I think was the ultimate impetus for the Eldred Ruling, was one of practicality; basically, overruling Congress on the CTEA would open up a can of worms on a whole slew of ip laws and international agreements. However, it is not clear that that opening that can of worms would impose anywhere near the cost that retroactively extending copyright did.

[spellbanisher]

Originally Posted by Kali Yuga

So I'm curious if anyone here is going to get much more sophisticated than "copyright bad."

So you've basically decided to start your post with a simple straw man. No one in in this thread has stated that "copyright is bad." Some have expressed displeasure with the extension and re-copyrighting of public domain works, with the contraction of the public domain, but not one post expressed even the idea of "copyright=bad."

Originally Posted by Kali Yuga

Generally speaking the Supreme Court takes the attitude that unless there really is a threat of perpetual copyright, then it's not their job to second-guess the acts of Congress on the question of copyright duration. They also rejected the idea that the First Amendment prevents a re-establishment of copyright, or that PD is "untouchable" by Congress. The requirement for copyright to perpetuate "arts and sciences" was already thoroughly reviewed and found to be non-binding in Eldred v Ashcroft.

What's your point?

The Alleged Simple-Minded Copyright Hater: I don't like the recent Supreme Court Ruling that reaffirms the power of Congress to remove works from the Public Domain. Furthermore, I don't think allowing Congress to contract the public domain or extend copyright serves the purpose of the copyright clause, which was to promote the creation of knowledge.

Kali yuga: The Supreme Court has already rejected the idea that the First Amendment prevents a re-establishment of copyright, or that PD is untouchable.

The Alleged Simple-Minded Copyright Hater: Are you posting in the right thread? I know what the Supreme Court Ruled, that is what I am disagreeing with in this thread.

Kali Yuga: All that matters to you is that copyright is bad, and any attempts by anyone to support copyright is also bad.

The Alleged Simple-Minded Copyright Hater:

Originally Posted by kali yuga

The ruling is very complex, in-depth, thoroughly researched and received a 6-2 vote. Not that anyone here is a) well-versed in US or international copyright law (I'm not) or b) bothered to read the ruling (I might read the whole thing if I have time).

Wait, hold on. Moving past your attempts to poison the well(well of course those stupid copyright haters didn't bother to read the ruling), you haven't read the whole thing? But you have no problem declaring that "The Requirement for for copyright to perpetuate "arts and sciences" was already thoroughly reviewed and found to be non-binding in Eldred V Ashcroft" and that the “ruling is very complex, in-depth, thoroughly researched,” even though you admit that you have not read the decision and that you are not well-versed in copyright law. So if you are not familiar with the literature, and you have not read the entire decision, how can you declare the copyright clause was “thoroughly reviewed” by the Rehnquist Court? This isn't just an honest mistake; you are appealing to a false authority—essentially stating that the Supreme Court has already thoroughly reviewed any challenges to copyright law, and therefore, anyone who disagrees is just a dumb copyright hater. Indeed there are scholars who would disagree with your assertion that the court thoroughly reviewed the relation of the First Amendment and Copyright Clause to Congressional action : From “The Constitutional Law of Intellectual Property After Eldred V Ashcroft”

http://people.ischool.berkeley.edu/~...ost-Eldred.pdf

"A substantial consensus exists within the community of American intellectual property scholars that the CTEA is unconstitutional...moreover, several constitutional questions posed in Eldred, which the court chose not to address, have significance for other constitutional challenges to intellectual property rules."

From "The Myth of Copyright's Fair Use Doctrine as a Protector of Free Speech"
http://www.chtlj.org/sites/default/f....Lockridge.pdf
We are told that these two accommodations are
“generally adequate to address” First Amendment concerns, although
they do not go so far as to make copyright “categorically immune”
from a First Amendment challenge:

“[W]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”4
As Justice Breyer noted in his dissent in Eldred, the Court in that
sentence provides questions, not answers.5
What are the “traditional contours” of copyright, and have they been altered? If the interpretation of the First Amendment matures in some way, should that not rightfully reopen the question of the interaction between copyright and free speech? And to the extent that the “traditional
contours” of copyright have changed, will the Court actually be
willing to scrutinize the relationship of copyright and free speech?"

Originally Posted by Kali Yuga

No, what matters is that copyright is bad, and any attempts by anyone to support copyright is also bad.

No, what matters is that you try to make yourself feel smart and self-righteous.

[tubemonkey]

It was a just ruling.

The case, Golan v. Holder, No. 10-545, considered a 1994 law enacted to carry out an international convention. The law applied mainly to works first published abroad from 1923 to 1989 that had earlier not been eligible for copyright protection under American law, including films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso

>> snip <<

Justice Ruth Bader Ginsburg, writing for the majority, said the law had merely put “foreign works on an equal footing with their U.S. counterparts.”

“Assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously,” she wrote.

She gave examples. “Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge,” while now, she said: “The right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.”

Indeed, she said, foreign works not eligible to be copyrighted in the United States before the 1994 law are somewhat worse off, as they receive “no compensatory time” for the period they had been in the public domain.

[HarryT]

Originally Posted by tubemonkey

It was a just ruling.

Entirely just, I agree, unless anyone believes that foreign publications should not enjoy the same protection that works published in the US do. That's the basic idea of the Berne Convention - that a work published in country "A" should enjoy the same protection in country "B" that works published in country "B" do.

[tubemonkey]

Originally Posted by HarryT

Entirely just, I agree, unless anyone believes that foreign publications should not enjoy the same protection that works published in the US do. That's the basic idea of the Berne Convention - that a work published in country "A" should enjoy the same protection in country "B" that works published in country "B" do.

Totally agree.

[fjtorres]

Basically, some folks sound as if they think the US is wrong when it asks other countries to protect US IP rights and are *also* wrong when they seek to protect other countries' IP within the US.

Seems to me it's simple reciprocity: somebody that believes IP rights need to be respected and living up to it. Next time the US seeks protection for US IP rights in the international arena, they can at least claim to be holding up their end of the treaties, unlike some of the countries benefitting from this decision.

[azazel1024]

Frankly why is anything more than life + say 10 or 20 years not sufficient? 50 let alone 70 years past death is way too long. Maybe I am parsimonious, but if I created something I wouldn't expect the copyright to devolve to my children upon my death, or at least not for long. In terms of profits, well they get my financial inheritance, and if I didn't manage my money and the royalties wisely, well that is my darned fault and my kids should have to pay for that. Not some carte blanche ownership of my intellectual works for what probably amounts to their life time and then their kids might own it for a good bit (or all) of their life time as well.

I can see a value to extending copyright for a few years after death. Say for example I was working on a new book, say book 6, of a "popular" series or even just a new book and I died. I very well might have wanted my child to continue that final book and publish it, or maybe I had some vision of how I wanted my works treated in the future, a movie, play, t-shirt, what have you, but I was unable to fullfill it in my life time, but maybe my child could.

For reasons somewhat like that, I do think that copyrights should extend beyond the creators life, but I also think they should be pretty limited past the creators life time.

Or novel idea, how about life long copyright and then the work effectively gets the creative commons treatment for another 50 years. You can repo/use the work, not for commercial gain with citation, but you cannot use the copyrighted material for commercial gain without the consent of the copyright holder.

[spindlegirl]

I think I will head to PG and download the whole darn thing before this becomes reality.

[HarryT]

Originally Posted by fjtorres

Basically, some folks sound as if they think the US is wrong when it asks other countries to protect US IP rights and are *also* wrong when they seek to protect other countries' IP within the US.

Seems to me it's simple reciprocity: somebody that believes IP rights need to be respected and living up to it. Next time the US seeks protection for US IP rights in the international arena, they can at least claim to be holding up their end of the treaties, unlike some of the countries benefitting from this decision.

Reciprocity is the whole cornerstone of the Berne convention. Other countries' works get the same copyright protection in your country as works published in your country do. Note that that's not to say that they get the same protection that they do in their country of publication, though.

[HarryT]

Originally Posted by spindlegirl

I think I will head to PG and download the whole darn thing before this becomes reality.

Would good will that do?

[spindlegirl]

Originally Posted by HarryT

Would good will that do?

I'd have all the books for free while it's still legal to do so