Quote:
Originally Posted by Hellmark
The problem is, that the idea of public domain is that no one owns it. How can no one sue anyone?
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First and foremost IANAL, repeat IANAL. (IANAL = I Am Not A Lawyer)
Ok, here is the potential argument.
I, as a member of the public, have an ownership right in any public domain item. I can do anything I want with it, even charge for a copy. (Nobody has to buy my copy, they can get another one free elsewhere, but I have the right to sell it.) What I don’t have to do is pay anybody else (i.e. the original rights owner) anything to do this. Nor does anybody have to pay me for a copy (that didn’t come through me).
Therefore, in terms of public domain ownership, I have standing. (Note this applies to the recent SOTUS foreign PD ruling as well, if any lawyers are interested…) (Also note, everybody in the US has standing. Whether or not a class-action lawsuit can be entered into the Court of Claims is unknown.)
So…If an item was to go into the public domain, and Congress passed an extension increasing the copyright length, I argue that that constitutes a taking of property. I was denied my property as of the date it should have gone into the public domain and become my property. While Congress has the right to take my property, via eminent domain, it must pay fair compensation for the property to the person it was taken from. I was not paid for my loss. Inasmuch as the property was taken first, without any compensation being paid, this is legally referred to as an “inverse taking”. The claim goes to a special court in D.C. called the Court of Claims. There is a statue of limitations involved. This is normally reserved for US Government takings, however the 2005 SOTUS ruling about government taking from one private party and giving it to another may open this Court a little wider. (No precedent set yet that I am aware of).
Now the issue of statute of limitation rears its ugly head. The legal question of whether the ticker would start when Congress passed the extension (and it is signed into law) or whether it starts when an Item would have gone into the Public Domain is undetermined. The case law (particularly concerning mineral rights takings) would be relevant. (Mineral right can be taken separately from surface rights and at different times. Therefore they can have different taking dates as far as the statute of limitations is concerned. In addition, the when of a subsurface taking can be construed to be at various points, such as when access is denied, surface is taken, all sort of different definitions.) I would argue that the time start at the actual time of the taking, i.e. when the item would have fallen into the public domain, rather than when the law was passed, inasmuch as the law could have been changed back (or otherwise modified to my benefit) so that no taking actually occurred until the property at question actually was seized by the extension. Any case should make claims at the 56 year boundary, as well as the life + 50 boundary, to prevent the case from being thrown out due to those limitations being argued as being past or not occurring yet. (Either way ˝ of the claim gets thrown out, but the other half remains, no matter what the court rules…)
The question of did I actually lose something that has no value when I receive it. I would note the cost of paying for material I should have received for free is a loss, not to mention the potential fines and imprisonment claims by the recipient of my property also could as costs I would be potentially subject to are losses. There is standing, in my opinion. (What a court will think is another matter.)
If this sounds like I have experience with the Court of Claims, I have. I refuse to divulge more due to privacy.
Sorry about the length, but this point can’t be covered any more concisely.
Oh yes, one more thing about the Court of Claims, if you win you not only get the money, but interest from the date of suit, no matter how long the suit takes…;