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Old 04-06-2009, 04:43 PM   #1
wallcraft
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US Court: Congress can't put public domain back into copyright

From Ars Technica:
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In 1994, Congress jammed a batch of foreign books and movies back into the copyright closet. They had previously fallen into the public domain for a variety of technical reasons (the author hadn't renewed the rights with the US Copyright Office, the authors of older works hadn't included a copyright notice, etc.) and companies and individuals had already started reusing the newly public works. Did Congress have the right to put a stop to this activity by shoving the works back into copyright? On Friday, a federal court said no.
The original case is about sheet music. Does anyone know how many books are covered? This is currently at the US Federal court level, it will no doubt be appealed.
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Old 04-06-2009, 05:02 PM   #2
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What this really means is that copyright law now means 2 different things in the US. There are works that is out of copyright in Kansas, Colorado, most of Oklahoma, Utah, New Mexico, Wyoming but are still in copyright everywhere else.
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Old 04-06-2009, 05:03 PM   #3
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Quote:
Originally Posted by Nate the great View Post
What this really means is that copyright law now means 2 different things in the US. There are works that is out of copyright in Kansas, Colorado, most of Oklahoma, Utah, New Mexico, Wyoming but are still in copyright everywhere else.
mmm... that's a joke right ??
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Old 04-06-2009, 05:03 PM   #4
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mmm... that's a joke right ??
I might have my facts wrong, but no I am not joking.
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Old 04-06-2009, 05:04 PM   #5
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So Kansonians(?) can file share a public domain book internally but cannot email it to someone in California??
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Old 04-06-2009, 05:05 PM   #6
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I might have my facts wrong, but no I am not joking.
sweet fuzzy squirrels because copyright law was far too simple, before, i guess...
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Old 04-06-2009, 05:12 PM   #7
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Quote:
Originally Posted by Nate the great View Post
I might have my facts wrong, but no I am not joking.
I assume you are saying this because it was a District Court? If so, doesn't that set a president that the other districts basically follow?

BOb
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Old 04-06-2009, 05:13 PM   #8
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Quote:
Originally Posted by Nate the great View Post
What this really means is that copyright law now means 2 different things in the US. There are works that is out of copyright in Kansas, Colorado, most of Oklahoma, Utah, New Mexico, Wyoming but are still in copyright everywhere else.
Quote:
Originally Posted by zelda_pinwheel View Post
mmm... that's a joke right ??
Nope. The Federal system in the U.S. is set up with N Federal Circuit Courts (N==7, I think). Rulings in each circuit* are binding precedent in that circuit unless over-ruled by the Supreme court (which oversees all courts in the US). Rulings in Circuit A often cite rulings from Circuit B as precedent, but they are not bound to do so. In fact, we often wind up with conflicting rulings from two or more circuits -- when this situation arises, it almost always leads to the Supreme court stepping in to hear a case and so resolve the disagreement.

A ruling of this form from one of the N circuits, increases the likelihood that other circuits will take the same stance. But no guarantees. Do you want to be the test case in some other circuit? Didn't think so.

Xenophon

P.S. IIRC the circuit courts are so named because the judges used to literally "ride the circuit" hearing cases, back in the days when it might take months to get from one part of their region to another. The split was done to ensure that precedent spread adequately rapidly, and also to provide diversity of legal opinion as a starting point for the Supremes when they consider cases.

*Each circuit includes both the front-line Federal courts, and also an Appeals court that sits at the top of that circuit's hierarchy. Obviously that Appeals court can over-rule regular courts within its own circuit.

Last edited by Xenophon; 04-06-2009 at 05:14 PM. Reason: Added paragraph on Appeals courts.
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Old 04-06-2009, 05:39 PM   #9
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Quote:
Originally Posted by Alphapheemail View Post
So Kansonians(?) can file share a public domain book internally but cannot email it to someone in California??
Well, ultimately it will depend on whether the purported copyright holders of the works in question try to enforce their copyright in the other districts. If they decide that the other courts are likely to agree with the one circuit that has already ruled, then de facto they might enter the public domain. Alternately, they might decide to take a middle course... Issuing cease and desist orders to people using the works but not enforcing them (for fear of loosing a legal judgement).

Don't you just love the way the law works

Frankly, as bad as it was to allow a retroactive extension to copyright, its hard to see a constitutional justification for copyrights reactivated after they have ended.

--
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Old 04-07-2009, 04:40 AM   #10
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Quote:
Originally Posted by Nate the great View Post
What this really means is that copyright law now means 2 different things in the US. There are works that is out of copyright in Kansas, Colorado, most of Oklahoma, Utah, New Mexico, Wyoming but are still in copyright everywhere else.
If that is true, it is not too surprising. There are different copyright laws and terms in different countries, and different states in the US have different laws in about everything else.
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Old 04-07-2009, 04:50 AM   #11
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Trying to put public domain works back under copyright protection does seems a little like trying to close Pandora's box. People could be using the works that have entered the public domain in all sorts of ways - would those suddenly be deemed illegal?

When, for example, Australia increased its copyright term from 50 to 70 years, all works which had entered the public domain due to "life + 50" status remained in the public domain. To attempt to do otherwise seems like an exercise in futility.
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Old 04-07-2009, 06:09 AM   #12
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But when the UK did it in 1996 it did make the law retrospective, and revived many copyrights, e.g. Kipling's works, which had been out of copyright in the UK since 1st January 1987, went back into copyright on 1st January 1996, and didn't come back out of copyright in the UK until 1st January 2007.

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When, for example, Australia increased its copyright term from 50 to 70 years, all works which had entered the public domain due to "life + 50" status remained in the public domain. To attempt to do otherwise seems like an exercise in futility.
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Old 04-07-2009, 06:15 AM   #13
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But when the UK did it in 1996 it did make the law retrospective, and revived many copyrights, e.g. Kipling's works, which had been out of copyright in the UK since 1st January 1987, went back into copyright on 1st January 1996, and didn't come back out of copyright in the UK until 1st January 2007.
Really? I didn't know that! Thanks for the information. Wouldn't you agree, though, that to do so raises no end of purely practical issues? What does happen to someone who has started, quite legitimately, to use the work while it is in the public domain? Are they suddenly deemed to be in breech of copyright?
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Old 04-07-2009, 07:33 AM   #14
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Really? I didn't know that! Thanks for the information. Wouldn't you agree, though, that to do so raises no end of purely practical issues? What does happen to someone who has started, quite legitimately, to use the work while it is in the public domain? Are they suddenly deemed to be in breech of copyright?
After a bit of searching I found a reference to this situation:

http://www.simkins.co.uk/Articles/nj...wsletter1.aspx

"The Regulations provide that where a copyright is revived, the copyright owner will not be entitled to prevent exploitation, but will be entitled to receive a royalty. This is an important distinction from the general provisions of copyright, which give the owner discretion as to whether or not he will allow exploitation of his work."

So yes, in breech, but could not be required to cease publication. I don't know whether a particular royalty rate was specified or not.

And to answer your question - yes, it was a very bad idea to revive copyrights.

The 1842 act had it about right. The longer of 42 years from publication or 7 years after the death of the author. It's all been going wrong since then!

Last edited by pdurrant; 04-07-2009 at 07:35 AM.
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Old 04-07-2009, 07:45 AM   #15
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Thanks, Paul. So, if I understand that correctly, once a work has been in the public domain once, it can thereafter be freely used without the permission of the copyright holder, but the copyright holder is entitled to ask for a royalty payment once the copyright has been revived. I suppose that is perhaps the "least of possible evils" in such a situation, undesirable though it is.
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