Supreme Court Says Congress May Re-Copyright Public Domain Works

[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...)

[JSWolf]

I think we shall call this the MICKEY MOUSE CASE! I bet it was started by Disney.

[HarryT]

Originally Posted by Ralph Sir Edward

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.

Would it not be fairer to argue that you shouldn't previously have had the right to perform it for free? It is unjust that the work does not receive the protection of copyright in the US when contemporary works published in the US do receive that protection. You seem to be arguing against what I'd see as a clear case of "doing the right thing".

[Greg Anos]

Originally Posted by HarryT

Would it not be fairer to argue that you shouldn't previously have had the right to perform it for free? It is unjust that the work does not receive the protection of copyright in the US when contemporary works published in the US do receive that protection. You seem to be arguing against what I'd see as a clear case of "doing the right thing".

In a word - No.

Should you have the right to, say Zane Grey's post 1923 works that are still under copyright in the US but not the UK? Or should you be paying royalties? If Berne is about reciprocity...

Under such a circumstance, what is the "right thing"? What was the "right thing" when the UK went from life + 50 to life + 70, and those items (such as Kipling) in the gap went back into copyright?

[Greg Anos]

More to the point, US law is based on our constitution and legal rulings precendent (the SOTUS being the ultimate ruling). The precedent is now set to pull things out of the Public Domain and place them back into copyright. There were other ways our government could have recompensed the original creators other than by this precedent.

Do not be suprised to see things suddenly being pulled back into copyright that have no reason to be, by your "doing the right thing". the legal precedent has been established, and you're going to see the members of MPAA, RIAA ram a train through it.

Consider, Disney might want a 1000 year copyright on all the public domain titles it has used in it's theme parks and movies over the years. Bribe a few politicians...

[HarryT]

Originally Posted by Ralph Sir Edward

In a word - No.

Should you have the right to, say Zane Grey's post 1923 works that are still under copyright in the US but not the UK? Or should you be paying royalties? If Berne is about reciprocity...

It's not about reciprocity in the sense that you're using it above.

The Berne convention says that works published in country "A" should receive the same protection in country "B" that works published in country "B" do, not the same protection that works published in country "A" do.

Thus, to use your example above, all of Zane Gray's works are in the public domain in the UK because UK law says that any work whose author died more than 70 years ago in in the public domain, and Zane Gray died in 1939, which is more than 70 years ago. ie, Mr Gray's works get the same copyright protection (or, in this case, get placed in the public domain) as works published in the UK do.

Under such a circumstance, what is the "right thing"? What was the "right thing" when the UK went from life + 50 to life + 70, and those items (such as Kipling) in the gap went back into copyright?

What I believe happened in the UK, when copyright law was extended from +50 to +70, and works which had previously been in the public domain re-entered copyright, was that everyone who was commercially exploiting such works had to pay a fee to the copyright holder for the right to continue exploiting those works, but the copyright holder was not allowed to refuse permission for the continued usage. I don't know if that's the "right thing" or not, but it seems like a reasonable compromise. Australia chose a different solution - they said that everything that's in the public domain now stays there, but there's a 20 year hiatus in new work entering the public domain until life+70 "catches up".

[Greg Anos]

<Shrug> Different people have different ideas about what "the right thing" is. My are no "righter" than yours, and yours are no "righter" than mine.

Congress could have appropriated money for sinking fund to make up for the loss to the creators. Would that not have been "right"?

I'm saying that the damage being repaired by bringing these things back into copyright is going to miniscule compared to harm that will occur from this ruling over time.

Look at SOPA...

[HarryT]

Originally Posted by Ralph Sir Edward

I'm saying that the damage being repaired by bringing these things back into copyright is going to miniscule compared to harm that will occur from this ruling over time.

What harm do you believe is done by bringing US law into compliance with an international treaty to which it is a signatory? That's something that happens all the time in the EU, as national governments bring national law into line with EU law.

[Greg Anos]

Originally Posted by HarryT

What harm do you believe is done by bringing US law into compliance with an international treaty to which it is a signatory? That's something that happens all the time in the EU, as national governments bring national law into line with EU law.

The harm is that the Public Domain no longer has a legal standing in the US. Any Public Domain Item can now be taken out of Public Domain and granted to anybody by act of Congress. It is <not> limited to pre-Berne differences. Anything is now fair game, without recourse.

I think that is a major harm. Your mileage may vary...

[HarryT]

Originally Posted by Ralph Sir Edward

The harm is that the Public Domain no longer has a legal standing in the US. Any Public Domain Item can now be taken out of Public Domain and granted to anybody by act of Congress. It is <not> limited to pre-Berne differences. Anything is now fair game, without recourse.

I think that is a major harm. Your mileage may vary...

But, as you pointed out yourself, this is something that's happened in other countries too, such as the UK and Australia, and it really hasn't been a forerunner of the collapse of civilization. A few people may have been inconvenienced by it in a minor way; that's the extent of it.

[Greg Anos]

Originally Posted by HarryT

But, as you pointed out yourself, this is something that's happened in other countries too, such as the UK and Australia, and it really hasn't been a forerunner of the collapse of civilization. A few people may have been inconvenienced by it in a minor way; that's the extent of it.

Then it's Ok with you if I convince Congress to grant me a 1000 year copyright on Shakespeare...

[HarryT]

Originally Posted by Ralph Sir Edward

Then it's Ok with you if I convince Congress to grant me a 1000 year copyright on Shakespeare...

No, that would be silly. But I would be happy if Congress granted a 1000 year copyright to Disney if it meant, as a consequence, that the rest of US copyright law could get back to something that's at least vaguely in line with what's done in every other western nation.

You say that the legal standing of the Public Domain is under threat, but isn't the truth of the matter that it's already well and truly stamped underfoot? For virtually nothing published after 1923 to be in the public domain, and nothing new to enter it until - is it 2047? - is just madness.

[Greg Anos]

Originally Posted by HarryT

No, that would be silly. But I would be happy if Congress granted a 1000 year copyright to Disney if it meant, as a consequence, that the rest of US copyright law could get back to something that's at least vaguely in line with what's done in every other western nation.

You say that the legal standing of the Public Domain is under threat, but isn't the truth of the matter that it's already well and truly stamped underfoot? For virtually nothing published after 1923 to be in the public domain, and nothing new to enter it until - is it 2047? - is just madness.

2019, actually...(The 1923 pre-Berne extension is up then.)

It had not been totally stamped underfoot, because once in P.D. always in P.D. was the viewpoint. Now that's gone. That really is stomping it under the jackboot...(or is it the Dollar?)

The bedrock of our constitution and world view has always been equal treatment under the law. Granting a corporation specific favors under law is not the right way to go.

[HarryT]

Originally Posted by Ralph Sir Edward

2019, actually...(The 1923 pre-Berne extension is up then.)

Oh well, that's not too bad - only another 7 years. But does anyone really think that there won't be another extension?

The bedrock of our constitution and world view has always been equal treatment under the law. Granting a corporation specific favors under law is not the right way to go.

Isn't "equal treatment under the law" what this issue is all about? Equal treatment for foreign-published works?

How would you feel about corporate copyright lasting for the lifetime of the corporation, in parallel with the lifetime copyright enjoyed by individuals?

[Kali Yuga]

OK, again....

1) The Constitution says nothing about public domain, its structure or any limitations.
2) The ruling points out how Congress can restore copyrights on material that is in public domain. The limitation is that it can't result in perpetual copyrights.
3) Yet again, §514 of the URAA was designed to mitigate claims based on the Takings Clause. That was the point of the footnote you cited.
4) The Takings Clause was not discussed at all in Eldred and barely in Golan. Again, if your position was viewed as a likely option, at a minimum it's not a part of the petition or dissent in either of those cases.

By the way, you kind of have the Takings Clause a bit backward. The literal text says "nor shall private property be taken for public use, without just compensation." (emphasis added) This was only recently (and controversially) extended to include the seizure of private property for private use that allegedly serves a public good. I'm not aware of any indication that the government cannot "seize" a public resource and privatize it, at least not based on the Takings Clause. I mean, is the government supposed to compensate the government for selling a slice of land it owns?

(Note: this doesn't seem to be part of the reasoning in this ruling; again, the ruling just says "§514 is sufficient to satisfy concerns in the Takings Clause." I presume all parties roughly agree with the SCOTUS' evaluation.)

The Atlas Shrugged example does not apply, because it would involve removing Constitutionally protected ownership from the copyright holders (presumably Ayn Rand's estate). The lake seizure is also not applicable, because the state is acquiring property from an actual owner via eminent domain.

Congress is not seizing property that you own, precisely because no one owns it any more. The public doesn't receive royalty payments on PD works; the public can't assign the right to distribute a public domain work to a specific organization; the public can't block or grant the right to make a work derivative of a PD work. Neither the Constitution nor Copyright Law stipulate that a work in "public domain" has had its ownership transferred; all it says is that "after x years, copyright expires, and the copyright holder loses all the protections."

Further, part of the idea is that these works should have been protected all along, and was not because the US was not upholding its obligations to Berne. It's not that the works were once protected, and new protection was imposed; it's more like the government recognizing it had a responsibility all along to offer copyright protection. I.e. the SCOTUS is saying that with URAA/CTEA, Congress restored the copyrights to the proper owners.

Now, Congress could accept your argument, and rewrite copyright laws such that a work cannot be removed from the public domain once it's entered, or that when a work enters public domain, ownership is in fact transferred. But those kinds of decisions lie with Congress, because the Constitution makes no such provisions.