Supreme Court Says Congress May Re-Copyright Public Domain Works

[HarryT]

Ok, you've convinced me .

[murraypaul]

It is difficult to get your head around the idea that the freely available book I downloaded and was allowed to read yesterday I might not be allowed to read tomorrow.

[HansTWN]

I don't think there will be anyone who would actually remove those books or re-buy them (except stonetools, of course), but this is an interesting legal question.

[Greg Anos]

Originally Posted by spellbanisher

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:



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



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:



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.

All this revolves around a 1798 SCOTUS (yes, that 1798, not 1978) that ruled that the ex post facto limitation of the Constitution only applied to criminal law, not civil law. That's the reason why Congress can keep extending copyright retroactively.

http://www.cato.org/pubs/journal/cj15n2-3-4.html

[teh603]

Originally Posted by HansTWN

I don't think there will be anyone who would actually remove those books or re-buy them (except stonetools, of course), but this is an interesting legal question.

Pre-existing downloads that aren't re-distributed should fall under the US Constitution's Ex Post Facto clause.

TL;dr- You can't change the law and then charge someone for an act that was legal before you changed it, as long as they aren't still doing it.

[Greg Anos]

Originally Posted by teh603

Pre-existing downloads that aren't re-distributed should fall under the US Constitution's Ex Post Facto clause.

TL;dr- You can't change the law and then charge someone for an act that was legal before you changed it, as long as they aren't still doing it.

You can in Civil Court. See above.

[teh603]

Originally Posted by Ralph Sir Edward

You can in Civil Court. See above.

There's a difference between a civil judgement and a criminal conviction, though. For one, a civil judgement is based (stupidly) upon preponderence of evidence instead of reasonable doubt doctrine. You also can't go to jail based upon a civil judgement.

[theducks]

Every book (or other media) transferred to your AUTHORIZED computer violates copyright every day because the data is buffered in many places in its journey from the authorized server to the authorized reader device.

A Buffer contains a COPY of at least a portion of the work.
Coping, not retention is the violation.

DMCA requires that Internet be Shut down now because of repeated violations

[spellbanisher]

Originally Posted by Kali Yuga

I've spent enough time on MR to know that there will be a lot of negative reactions to the ruling, based on personal preferences rather than actual understanding of the law or how the SCOTUS works.

None of that was relevant to what I said or anyone else said in this thread; you stated that basically people in this thread were saying "copyright is bad." Not one person (up to the point of your posting) expressed that sentiment.

Originally Posted by Kali Yuga

Not yet, I've read about 1/3 of it so far.... and did not choose to hide it. It's long, complicated, and just came out. I'd like to read it more carefully, but have lots more on my plate.

The problem is not that you have yet to read it; it's that you made judgments about it without fully reading it.

Originally Posted by I've read [i

Eldred v Ashcroft.[/i] And yes, that ruling does review and reject the idea that the "promote arts and sciences" phrase is not binding on the powers of Congress.

No, it doesn't. The core of Ginsburg's decision, which is repeated in every section of the text, is that because Congress has repeatedly extended copyright in the past, Congress would be acting within its established power to to extend copyright in the present or future. Probably the most pertinent quote is this one:

“To comprehend the scope of Congress’ power under the Copyright Clause, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime."

Second, she dot not conclude that the phrase to “promote arts and sciences” is not binding on congress: rather, she concludes that in light of previous extensions, retroactively extending copyright can be interpreted as promoting the arts and sciences in several ways:

One way is by allowing the United States to maintain a leadership role in international copyright regimes:

“the United States could not “play a leadership role” in the give-and-take evolution of the international copyright system, indeed it would “lose all flexibility,” “if the only way to promote the progress of science were to provide incentives to create new works”)

This reasoning, however, was erroneous, because the United States did not bring its copyright laws in line with Europe—it actually made them longer, as Breyer points out.

*“Despite appearances, the statute does not create a uniform American-European term with respect to the lion’s share of the economically significant works that it affects–all works made “for hire” and all existing works created prior to 1978. See Appendix, Part B, infra. With respect to those works the American statute produces an extended term of 95 years while comparable European rights in “for hire” works last for periods that vary from 50 years to 70 years to life plus 70 years... Neither does the statute create uniformity with respect to anonymous or pseudonymous works...
****The statute does produce uniformity with respect to copyrights in new, post-1977 works attributed to natural persons...But these works constitute only a subset (likely a minority) of works that retain commercial value after 75 years. See Appendix, Part B, infra. And the fact that uniformity comes so late, if at all, means that bringing American law into conformity with this particular aspect of European law will neither encourage creation nor benefit the long-dead author in any other important way."

Indeed, the effect of the CTEA was to make corporate copyrights much much longer than the ones in Europe. For instance, in the EU, copyright's based on publication date (I.e.e things like corporate copyrights) last 70 years after publication or 70 years after creation if unpublished. Before the CTEA, published copyrights lasted 75 years, which is longer than the current EU duration. The CTEA extended published copyrights, which already had longer duration than those in the EU, to 95 years after publication, or 120 years after creation if unpublished.

This bolsters the argument that the CTEA was not passed to bring the United States into conformity with international law, but to make sure Mickey didn't enter the public domain. Ginsburg also concludes that Congress's actions were not attempts to circumvent the "limited times" clause, but were clearly initiatives to bring the US copyright regime into conformity with international regimes. I think the evidence invalidates that argument. Furthermore, in light of the Supreme Court's stance that works in the public domain can be recopyrighted by congress, there is no justification for having different copyright terms for works published before 1977.

Another reason is that one of the incentives to create new works is the implicit understanding that a copyright extension will extend to a creators works:

“Congress could rationally seek to “promote … Progress” by including in every copyright statute an express guarantee that authors would receive the benefit of any later legislative extension of the copyright term. Nothing in the Copyright Clause bars Congress from creating the same incentive by adopting the same position as a matter of unbroken practice. “

I just think this is silly, so I won't go too much into it. First, I doubt very many creators are aware of the history of copyright law. Second, I doubt any creators think about the duration of copyright when they create works. Breyer also undercuts the economic rationale for the CTEA.

What copyright-related benefits might justify the statute’s extension of copyright protection? First, no one could reasonably conclude that copyright’s traditional economic rationale applies here. The extension will not act as an economic spur encouraging authors to create new works. See Mazer, 347 U.S., at 219 (The “economic philosophy” of the Copyright Clause is to “advance public welfare” by “encourag[ing] individual effort” through “personal gain”); see also ante, at 21—22, n. 18 (“[C]opyright law serves public ends by providing individuals with an incentive to pursue private ones”). No potential author can reasonably believe that he has more than a tiny chance of writing a classic that will survive commercially long enough for the copyright extension to matter. After all, if, after 55 to 75 years, only 2% of all copyrights retain commercial value, the percentage surviving after 75 years or more (a typical pre-extension copyright term)–must be far smaller. See supra, at 7; CRS Report 7 (estimating that, even after copyright renewal, about 3.8% of copyrighted books go out of print each year). And any remaining monetary incentive is diminished dramatically by the fact that the relevant royalties will not arrive until 75 years or more into the future, when, not the author, but distant heirs, or shareholders in a successor corporation, will receive them. Using assumptions about the time value of money provided us by a group of economists (including five Nobel prize winners), Brief for George A. Akerlof et al. as Amici Curiae 5—7, it seems fair to say that, for example, a 1% likelihood of earning $100 annually for 20 years, starting 75 years into the future, is worth less than seven cents today. See id., at 3a; see also CRS Report 5. See generally Appendix, Part A, infra.

What potential Shakespeare, Wharton, or Hemingway would be moved by such a sum? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

The present extension will produce a copyright period of protection that, even under conservative assumptions, is worth more than 99.8% of protection in perpetuity (more than 99.99% for a songwriter like Irving Berlin and a song like Alexander’s Ragtime Band). S

Originally Posted by Kali Yuga

Any more names of fallacies you'd like to throw out, rather than address the actual content of my post?

Considering that a substantial proportion of the "content" of your post are fallacies, I think I did. But I don't think you've addressed anything but straw men that you've created.

Originally Posted by Kali Yuga

Ms Samuelson doesn't seem to say much more than "Feist should have applied, and Lessig's argument was correct."

No, it wasn't that simple, but it is increasingly becoming clear that you won't or can't give justice to perspectives and arguments that are different from your own.

Originally Posted by Kali Yuga

Wow, that appeal to the vague authority of a "substantial consensus" of scholars, cited by a scholar with her own agenda, really showed me.

Another ad hominem. There is a citation for that passage:

“Approximately sixty intellectual property scholars were signatories of amicus curiae briefs submitted to the court in Eldred. See Brief Amicus Curiae of Intellectual Property Professors, Brief Amicus Curiae of Historians...One intellectual Property scholar submitted an amicus brief in support of General Ashcroft...
Most of the law review literature on Congress' extension of existing copyright terms argued against its constitutionality...”
Then she a very long list of articles law review articles on Eldred.

All you revealed here your own disdain for anyone with a different perspective; basically, “different viewpoint=has an agenda.”

Originally Posted by Ralph Sir Edward

All this revolves around a 1798 SCOTUS (yes, that 1798, not 1978) that ruled that the ex post facto limitation of the Constitution only applied to criminal law, not civil law. That's the reason why Congress can keep extending copyright retroactively.

http://www.cato.org/pubs/journal/cj15n2-3-4.html

None of this has to do with anything I posted. The arguments that I have made, or that I have posted from Breyer and Stevens, were not that retroactive copyright extension was unconstitutional because of the ex post facto limitation of the Constitution. Are you sure you quoted the right post?

[Ginger Irving]

Who exactly gets to own the work of millions of long-dead authors?

The ownership lawsuits alone, for millions and millions of works, will be an epic, chaotic nightmare to behold. What if the author has no heirs, or nobody wants to claim ownership of their work? It can't be in the public domain ... it can't be owned ... so what limbo does it waft around in, rattling its chains for all eternity?

And, most importantly:

Is it possible to get a fatal illness from repeatedly rolling your eyes? Because if it is, this Court will most certainly be burying millions.

[teh603]

Originally Posted by Ginger Irving

Who exactly gets to own the work of millions of long-dead authors?

Probably the publishers who bought their rights decades ago, with no rights-return clauses?

[taosaur]

Originally Posted by Ginger Irving

Who exactly gets to own the work of millions of long-dead authors?

I believe the suit was brought by the rights owners in the authors'/composers' home nations.

[HarryT]

Originally Posted by taosaur

I believe the suit was brought by the rights owners in the authors'/composers' home nations.

As has been repeatedly said, this is about bringing the US into compliance with the basic principle of the Berne Convention: that works published in other countries get same same protection in the US as do works published in the US. Does anyone think that this is an unfair principle?

[Greg Anos]

Originally Posted by spellbanisher

None of this has to do with anything I posted. The arguments that I have made, or that I have posted from Breyer and Stevens, were not that retroactive copyright extension was unconstitutional because of the ex post facto limitation of the Constitution. Are you sure you quoted the right post?

What I wanted to point out is the underlying fact that all copyright extension is ex post facto law. I'm not supporting Kali, I'm just noting the underlying legality of any extension is based on the 1798 ex post facto ruling. Otherwise, no extension of any copyright would have been found legal. Changing the length of work created after the change, yes, but not extensions. (It's one of those jug headed ruling that affect everyone in the US without our generally knowing about it. (The 1886 ruling making Corporations "people" is another...))

The only other legal argument that I am aware of that's left and I could be wrong (IANAL) would be to sue the members of RIAA and MPAA under the inverse taking clause under the Court of Claims. (another piece of obscure US law) tha legal argument would be that the government took the property (i.e. the copyrights extended) from the individuals who would have received it upon expiration of copyright. Inasmuch as this is normally reserved for sue the government for taking, you probably couldn't actually get at the copyright holders, but you might get Congresses attention, for the next time around... (Lots of mineral rights cliams are of this nature...)

[Greg Anos]

Originally Posted by HarryT

As has been repeatedly said, this is about bringing the US into compliance with the basic principle of the Berne Convention: that works published in other countries get same same protection in the US as do works published in the US. Does anyone think that this is an unfair principle?

No, just an impossible one. The large corporations woh own/control valuable I.P. will never let the US truly follow Berne because they will lose property to the public domain.

If you want to get the same protection, you should be following the guideline upon such protection is based on. It's both, not either/or.

I'd have no beef with the ruling if, (and I repeat IF) the US was truly following the text of Berne in defining it copyrights. It doesn't, and it won't!