[Greg Anos]

Kali, I don't know how familar you are with the legal mechanics of the Fifth Amendment.

Fair compensation is not and cannot be set by the "political branches" of the US government. Usually Takings are done by the Executive Branch under laws passed by the Congress, rather than directly by Congress, but as to the results it doesn't matter. If the person from whom the taking is done feels they are receiving inadequate compensation, they have the right to sue the US Government (in The Court of Claims) for fair compensation. They can introduce evidence for the valuation claim they make, and the government can defend it's valuation. The Court then decides what fair compensation is. (And yes, it's appealable.) The Government is bound by Court of Claims ruling, and must pay whatever the Court decides, plus interest from the date of filing (subject to appeal).

IANAL, but I have been a plaintiff before the Court of Claims. Been there, done that, got the t-shirt.

Let me give you a hypothetical case. Congress decides to seize Ayn Rand's Atlas Shrugged. They pass a law seizing the property and setting the compensation at $1. The copyright holders have the right to sue in the Court of Claims, showing sales record for the last 50 years, profit margins on those sales, slope of sale decay (or not) over that time period, the time left in the copyright under current law, ect. The government has the right to show any evidence that the values really should be $1. (And passing the law is not evidence. That is the reason the Fifth Amendment exists, to limit Government from arbitrarily seizing property for it's benefit.)

A more tangible example might be Congress passes a law to build a drinking water lake. They seize the surface rights to the land. Later, the owners of the residual mineral rights (that weren't taken) try to develop the residual mineral rights. The government (the executive branch, enforcing Congress's action) then seizes those rights, paying a pittance, claiming there is nothing to develop, and even if there was, you can't get access, making the rights worthless. The owners have the right to sue in the Court of Claims, showing nearby production, historical sesmigraph soundings, expert testimony, ect., in order to claim that the value was more than a pittance at time of taking, and argue that the time of taking was when the mineral owners were disposses, not when the Governement invokes it's condemnation. The Court decides...

And so it is with the Golan decision. For example, I have a copy of Peter and the Wolf. I could perform it before for free, I can't perform it after without paying a royalty. Even though Congress has the right to seize said property, I'm claiming a loss from that seizure. I have the right to argue for recompense from that seizure before the Court of Claims. Whether or not I will win, of course, is unknowable.

The only real question would be, do I have an ownership right, from an economic standpoint. I can certainly point to economic loss, due to the seizure. You firmly insist that I don't. Footnote 33 clearly implies that I may, else it would not have been there. The SOTUS has not ruled on this issue (the Fifth Amendment Taking issue, re the public domain) at all, there is not case law. (The SOTUS rules on cases, not laws. A subtle distinction, but very real. They can only rule on the merits of the case before them. And all cases have been based on the First Amendment, not the Fifth.)

As a aside, Kali, I don't think you understand the disaster this case has caused to copyright concepts. it opens the door for Congress to pull anything back into copyright by legislative fiat. There is nothing stopping Congress from granting a re-copyright to anything in the Public Domain to any favored entity, for any fixed length. (Maybe I can convince Congress to grant me the rights to Shakespeare for the next 1000 years. It's now legal...)